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COMMENTARIES 

ON  THE  *"^ 

liAWS  OF  VIRGI]\IA, 

COMPKISING  THE 

SUBSTANCE   OF  A  COURSE   OF  LECTURES 

DELIVERED'  TO  THE 

WINCHESTER  LAW   SCHOOL: 


HENRY  ST.  GEORGE  TUCKER, 

CHANCELLOR  OF  THE  FOURTH  JUDICIAL  CIRCUITr 


CONDO  ET   COMPONO. 


IN   TWO   VOLUMES. 
VOL.    II. 


7.H  E  3^y'- 


WINCHESTER: 

fRlNTED  AT  THE   OFFICE  OF    THE  REPUBLICAH, 
FOR  THE  AUTHOR. 

1837. 


V/  ^ 


INDEX  TO  THE  COMMENTARIES. 


BOOK   III 


Abatement  of  the  inheritance,  164 ;  of  nuisances..  4 ;  how  the  right  is  to 

be  exerted,  4. 
Abatement  by  death,  253,  254  ;  see  trial  by  inspection,  and  282  ;  no  abate- 
ment if  action  is  maintainable  by  executor,  254  ;  see  Sci.fa.,  and  254. 
Abatement,  plea  in,  254 ;  must  be  verified  by  oath,  254  ;  must  give  plain- 
tiff a  better  writ,  254;  must  be  pleaded  in  time,  254;  see  order  of 
pleading,  and  254  ;  judgment  on  plea  for  plaintiff  or  defendant,  321, 
255;  see  Costs,  and  255;  for  want  of  parties,  151  ;  distinction  here- 
in between  contract  and  tort,  151. 
Abduction,  injury  of,  and  remedy  for,  72,  73;  see  Seduction. 
Accord  and  satisfaction,  24;  what  good,  24;  demand  must  be  subsist- 
ing, 25;  one  satisfaction  discharges  all,  25  ;  what  good  in  respect 
of  the  compensation,  25;  executory  agreement  not  good  satisfaction 
at  law,  25;  if  without  consideration  it  is  nudum  pactum,  25;  see 
Composition,  and  25,  26;  contract  of  same  nature  no  satisfaction^ 
26;  aliter  if  of  higher  dignity,  or  for  different  matter,  26;  so  pay- 
ment of  less  sum  before  the  day — or  at  a  different  place,  27  ;  so  bonds 
and  notes  of  third  persons  are  good  satisfaction,  27  ;  distinction  be- 
tween assignments  as  payment  or  as  collateral  security,  27;  pay- 
ment in  bills  of  exchange  dishonored,  27;  satisfaction  must  be  ac- 
cepted, 28 ;  complete  and  executed,  28;  and  of  the  whole  demand, 
28;  how  to  be  pleaded,  28;   plea  of  not  good  in  real  actions,  24. 

Accident,  ground  of  equitable  jurisdiction,  398  ;  see  Lost  Bond,  and  398, 
399,  400  ;  see  Confusion  of  Boundaries,  and  400  ;  estate  defeated  by 
accident,  when  relieved,  401  ;  distinctions  herein,  401 ;  see  Pre- 
sumption  from  time,  and  401  ;  see  J^xecwior,  and  401,  402  ;  see  Ca- 
veat, and  402 ;  see  Laches,  and  402 ;  state  of  the  currency  not  reliev- 
ed against,  402. 

Account,  ground  of  eq.  jurisdiction,  409 ;  what  deemed  matters  of  ac- 
count, 409,  410  ;  accounts  of  agents,  stewards,  &c.,410  ;  in  cases 
of  mines,  dower-partnership,  and  trust,  410  ;  rents  and  profits  how 
far  back  allowed,  410,  411  ;  how  where  the  case  is  of  a  trust,  410  ;  or 
an  infant's  estate,  411;  see  Permanent  Improvements,  and  411 ;  see 
Stated  Accounts,  and  412;  see  Limitations,  and  412  ;  see  Stewards, 
Agents,  &,c.,  and  417  ;  on  bill  for  account,  defendant  may  have  de- 
cree, 417;  see  Surcharge,  and  417. 

Account,  writ  of,  129 ;  items  of,  must  be  filed  in  assumpsit,  105,  133,  147  ; 
or  with  off-set,  108,  160. 

Acquiescence,  distinguished  from  presumption  from  length  of  time,  416. 

Actions  at  law,  how  commenced,  231;  how  divided,  50. 

Actio  personalis  moritur  cum  persona,  223,  253. 

Adultery,  see  Crim.  Con. 

Affidavit,  256,  304. 

Affirmative,  proof  lies  on  him  who  holds  the,  288,  298. 

Agent,  warned  not  to  pay  over  is  liable,  131,  132;  bond  to  keep  accounts, 
417 ;  confounding  his  principal's  goods  with  his  own,  417. 

*,_  f<»/ r;..;  "..  "^^JtM^. 


iv  INDEX. 

Agreemknt  not  to  be  performed  within  a  year  must  be  in  writing,  140; 
what  sutficient  signing,  141. 

Aid,  '2'r2. 

Aliknagk,  ploa  of,  UJO. 

Allegata  and  probata  must  correspond,  148,  149,  151. 

Almanac,  date  decided  by,  '^S'i. 

Amendmk.nts,  3-27;  never  of  judgment  after  term  passed,  3-27  ;  except  by 
our  statute,  317,  31S;  am.  after  demurrer,  '208;  leave  to  am.  when 
considered  as  waived,  2U*J ;  if  one  amends,  the  otlier  may  plead  or 
reply  de  novo,  "208;  statutes  of  amendment  and  jeofail,  313,  3*27; 
considered  as  made,  if  party  has  a  right  to  make  it,  317  ;  error  cured 
as  to  one  defendant  cured  as  to  all,  317. 

Ancient  keeds  ])rove  themselves,  "288  ;  and  wills,  288. 

Answer,  dciendant  by  his  plea  must  answer  the  whole,  262;  eflect  of  de- 
fence as  to  part  only,  lOo,  202;  or  of  defence  as  to  the  whole,  and 
answer  to  part  oidy,  2G2,  105. 

Answer  in  Chanccnj,  weight  of,  48(J,  502;  how  it  must  be  contradicted, 
4b7,  5U2  :  when  it  loses  its  weight,  487,  502,  503  ;  not  replied  to, 
effect  of,  487,  503  ;  in  what  court  is  the  weight  of  the  answer  deem- 
ed superior  to  oath  of  one  witness,  488,  502;  see  Practice,  and  499  ; 
when  plaintilF  goes  into  equity  on  the  irround  of  discovery  only,  the 
answer  is  conclusive,  503 ;  answer  of  one  defendant  no  evidence 
against  another,  5i)3  ;   but  his  deposition  may  be  taken,  503. 

AiTEALs,  335  ;  when  and  how  allowed,  335,  336;  to  whom,  335;  for  what 
amount, 336;  when  matter  of  right,  336;  at  what  time  allowed, 336; 
facts  when  rc-examinable,  336;  bond  on,  329,  330;  when  only  de- 
mandablc  of  executors,  •331  ;  one  of  several  parties  in  equity  may  ap- 
peal alone,  331 ;  record  when  to  be  filed  332  ;  proceedings  on — see 
Error,  writ  of,  and  332,  3-3^3  ;  damages  on,  334;  judgment  on,  how 
certified,  33 1 ;   see  Executor,  and  339  ;   proceedings  in  nature  of,  .326. 

Application  of  payments,  106  ;  rule  as  respects  principal  and  interest,  106. 

Application  of  purchase  money,  obligation  to  sec  to,  451. 

Aruitkatiox,  28. 

ARurnt.vToRs,  28;  sec  Umpire,  and  28;  proceedings  by  them,  33;  should 
in  all  things  be  impartial,  32;   somclimcs  ap])oiiit  unij)ire,  32. 

Arrest,  when  illegal,  71 ;  void  in  case  of  executor,  71  ;  except  when  sued 
for  devastavit,  71  ;  when  privilege  \s  personal,  ofllcer  not  liable,  71  ; 
nor  trespass  against  the  plaintilf,  71  ;  but  case  does,  71  ;  what 
amounts  to  arrest,  316  ;  how  to  be  made,  347. 

Arrest,  who  privileged  from,  235. 

Artsio.NKE,  declaration  by,  102;  pleas  to  dec.  by,  115;  plea  of  payment  bo- 
fore  noiire,  1 15  ;  must  be  specially  |)lcaded,  116  ;  plea  of  no  assio-n- 
ment  throws  proof  on  plaintifi",  11(5;  see  Verdict,  and  120. 

AssAUi-T  and  iJATTERY,  5;  iicvcr  laid  with  a  ro7//iH!/an(/o,  54 ;  nor  a  (piod 
cum, 'il  ;  but  this  is  now  cured  by  verdict,  54  ;  lies  against  several  but 
two  cannot  join  in  except  baron  and  feme,  55;  general  issue,  55; 
Stat,  of  Inn. — former  recovery — satisfaction,  and  other  matters  may 
be  specially  jdeaded,  .55;  justification  must  always  be,  55 ;  other 
matters  in  regard  to  the  pleadings,  55;  evidence,  55  ;  trial — verdict 
— ^judgment — damages  ami  costs,  56;  judgment  de  mclioribus  dam- 
nis,  5()  ;   .'-ec  Wife,  ami  73. 

As.sTMPsiT,  I2S';  express,  12-',  |.31;  implied,  129,  130;  see  quantum  me- 
ruit, and  129,  133,  116,  I  1<»,  i.lO  ;  sec  ipinntum  vaUhat,  and  129; 
see  mfincy  had  and  rercired,  and  129  ;  money  paid,  and  129  ;  insivml 
compiilassent,  :iui\  129;  Far  stated  account,  iiud  I-IU  ;  indebitatus  as- 
sumpsit, iind  130;  mistake,  and  131  ;  deceit,  and  131;  void  authori- 


INDEX.  V 

ty,  and  132 ;  extortion,  and  132  ;  cheating,  and  132;  fees,  and  133; 
implied  assumpsit,  and  133  ;  express  contracts,  and  134 ;  sales,  and 
134 ;  see  Statute  of  Frauds,  Collateral  Promises,  Executors,  Marriage 
Agreements,  Sales  of  Lands,  Agreement,  and  138,  139;  action  of, 
can  in  general  only  be  maintained  by  party  to  the  promise,  141 ; 
evidence,  148;  see  Pleadings,  and  151  ;  amount  of  demand  must 
be  proved,  161  ;  nonsuit,  161 ;  costs,  161. 

Attachment,  pending  plea  of,  159  ;  when  in  bar,  and  when  only  in  abate- 
ment, 107;  doctrines  as  to  attachment,  107;  what  a  good  attach- 
ing order,  107  ;  does  not  excuse  from  interest,  107;  attachment,  a 
remedy  for  recovery  of  debts,  241. 

Attorney  at  law,  45  ;  right  to  the  aid  of  counsel,  46;  what  a  sufficient 
retainer,  46;  powers  of,  46;  when  determined,  46;  may  remit  da- 
mages— and  receive  money,  46 ;  cannot  enter  into  collateral  engage- 
ments, 47  ;  nor  take  bonds  in  payment,  47  ;  how  responsible  for  ne- 
glect or  misbehaviour,  47;  not  charged  with  interest  on  debts  lost 
through  his  fault,  47;  must  keep  his  client's  secrets,  48;  penalties 
for  extortion,  48;  for  appearing  on  appeals,  48;  right  to  retain  his 
fees,  49  ;  lien  for  them  on  client's  papers,  49  ;  and  on  funds  in  tran- 
situ, 49  ;  his  rights,  48  ;  effect  of  his  lien  on  right  of  set-off,  49  ;  fee 
not  to  be  refunded,  though  he  dies,  49  ;   or  failed  to  argue  cause,  49. 

Attorney,  power  of,  to  confess  judgment,  void,  321. 

Auctions,  frauds  on,  430  ;  bid  above  bid,  whether  necessary,  430. 

Auctioneer,  liable  if  he  prematurely  pays  over  deposite,  135 ;  agent  for 
purchaser,  and  his  signing  a  sufficient  signing,  464. 

Audita  querela,  326;  see  Motion  and  Injunction,  and  326,  327. 

Averment,  want  of,  when  cured,  315  ;   when  not,  315. 

Avowry,  see  Replevin. 

Award,  how  entered  up  under  rule  of  court  or  submission,  29 ;  how  and  for 
what  cause  set  aside,  29;  who  may  take  advantage  of,  30  ,  time  should 
be  limited  for.  32  ;  how  enlarged  from  time  to  time,  32,  33  ;  how 
many  must  concur,  33;  must  be  final,  34  ;  within  time,  34  ;  within 
the  submission,  34;  good  in  part,  though  void  for  residue,  34;  must 
not  be  of  part  only,  35;  nor  against  law,  35;  nor  impossible,  35; 
nor  unreasonable,  35  ;  must  be  of  something  advantageous,  35  ;  and 
must  be  certain — -final — ^and  mutual,  36  ;  construed  liberally,  36,  40  ; 
form  of,  36 ;  what  a  good  performance,  37  ;  remedy  by  action  at 
3aw  to  compel  performance,  37;  remedy  by  bill  in  equity,  39;  by 
attachment,  39;  action  at  law,  when  proper — how  brought,  and 
proceedings  in,  37,  38,  39  ;  awards,  for  what  set  aside,  40  ;  in  re- 
gard of  arbitrator's  conduct,  40;  or  the  award  itself,  40  ;  these  last 
must  appear  on  its  face,  40;  when  not  disturbed,  40  ;  when  other- 
wise, 40,  41 ;  when  set  aside  for  the  misconduct  of  parties,  41 ; 
relief  against  erroneous  awards,  41 ;  whether  real  estate  can  pass 
by  mere  award,  29;  conveyance  maybe  awarded,  or  release  of  title, 
29  ;  statutory  provisions  as  to  awards,  29  ;  see  Subtnission — Refe- 
rence — Umpire. 

Bail,  in  civil  cases,  wlien  and  how  demanded,  233  ;  endorsement  that  bail 
is  required  necessary,  233 ;  consequence  of  omission,  233;  when 
required  upon  affidavit,  234;  requisites  of  affidavit,  234  ;  defendant 
may  be  ruled  to  give  bail,  234  ;  appearance  bail  abolished,  235  ;  spe- 
cial bail,  235;  see  Sheriff,  and  237;  insufficiency  of,  at  what  time  to 
be  objected,  238  ;  proceedings  by  bail  for  his  own  exoneration,  240  ; 
proceedings  against,  by  the  creditor,  240,  241,  359;  bail  in  detinue, 
84,  313  ;  nature  of  his  recognizance,  84;  proceeded  against  by  scire 
facias,  84. 

Bankruptcy,  plea  of,  1«08  ;    a  good  plea  in  bar,  157. 


yi  INDEX. 

Battert,  when  justifiable,  52;  justification  as  to  innrincrs,  53 ;  justifica- 
tion of,  by  officer  under  process  or  otherwise,  53;  battery  includes 
assault',  53  ;   battery  of  wife,  73;  or  child,  74. 

Bidding,  retracted,  135. 

Bill  of  particulars,  105,  147,  133.  108,  160. 

Bill  in  equity,  490. 

Bill  or  peace,  464. 

Bill  or  interpleader,  484. 

Bill  for  prescrva(io7i  of  contesa^  property,  485. 

Bills  of  exchange,  and  prom^ory  notes,  136;  payment  of  debts  by,  27; 
see  Indeb.  Assumpsit,  and  144. 

Bills  of  exception,  "293;  principles  respecting,  293,  294;  see  Instruc- 
tion, and  293;  one  cannot  be  looked  into  to  aid  another,  293; 
should  set  (orih  facts,  and  not  evidence  on  question  of  new  trial,  294  ; 
never  can  have  effect  of  demurrer  to  evidence,  294  ;  signing  of,  bow- 
coerced,  294. 

Blanks,  in  declaration,  when  cured,  315. 

Bond,  sec  collateral  condition,  and  322  ;  cannot  be  discharged  before  breach 
without  deed,  28  ;  aliter,  after  breach,  28. 

BovNDs  noND,  351  ;   how  broken,  352  ;  to  be  assigned  to  the  creditor,  352. 

Breach,  must  allege  nonpayment  by  all  of  the  obligors,  102;  insufficiently 
set  out,  315. 

Capiai  ad  respondendum  ;  sec  Writ  original. 

Casa,  nature  of  it,  345  ;  how  levied,  346  ;  who  privileged  from  arrest  by, 
344;  aged  person,  344;  infant  maybe  taken  on,  344;  and  feme 
covert,  344  :  but  not  executor  or  administrator,  except  for  devastavit, 
344,  345;  satisfied  by  delivery  of  property  by  one,  345;  although 
there  be  several  taken,  356,  357  ;  refusal  to  discharge  after  tender  of 
property,  gives  cause  of  action,  345;  property  delivered,  how  dis- 
posed of,  346  ;  escape  from  custody — sheriff  liable — see  Escape,  and 
316;  whether  casa  levied  is  a  satisfaction,  355;  how  where  more 
than  one  def.,  356  ;  lien  of  the  casa,  354,  355  ;  examination  of  a 
recent  statute  as  to  this,  358  ;  debtor  discharged  from  casa  cannot 
be  retaken,  355;  bond  condition  to  recommit  him,  void,  355;  new 
execution,  if  def.  dies  in  custody,  357;  lien  of  casa,  378  ;  compared 
with  that  of  elegit,  378  ;  debtor  in  execution,  under  several  casas, 
may  prefer  one  of  the  creditors  to  others,  380. 

Case,  origin  of  action  on  the,  93  ;  sur-assumpsit,  93  ;  see  Assumpsit ;  case 
for  torts,  see  Trespass  on  the  Case  ;  various  actions  on  the,  162  ;  lies 
aguinst  attorneys,  bailees,  carriers,  innkeepeers.  Sec,  162. 

(^'ase  agreed,  300. 

Caveat,  18(j ;  its  object  and  function,  186;  equitable  relief  after  failure  to 
cavf-at,  187,  402  ;  statute  giving  it,  not  retro-aciive,  187  ;  who  can 
maintain  a  caveat,  lh7  ;  effect  of  dismission  of,  187;  grounds  of 
caveat,  187;   mode  of  proceeding  in,  188. 

Certainty,  260,  261  ;  time,  place,  value,  persons,  261,262;  what  need 
not  be  set  forth,  262. 

Challenges  to  the  array,  2'^6  ;  to  the  polls,  286  ;  for  what  causes,  286,  287. 

Cheating,  money  paid  may  be  recovered  back,  132. 

Choseh  in  nclirm,  not  liable  to  execution,  but  reached  in  equity,  383. 

Cognovit  artionim,  255,  321  ;  for  pnrt  and  defence  as  to  residue,  255  ;  see 
Tender. 

Collateral  i-romtsf.,  13"^,  I.'}9. 

Collateral  condition,  jmlginent  on  bond  with,  322. 

roMPOf«iTiON  with  cre(iitf)ri  set  uMde  if  fraudulent,  ^427  :  wlien  and  when 
not  binding,  25,  26. 


Common  order,  238.  '' 

Conditions,  precedent  and  subsequent,  aee  Accident,  and  401. 

Confession  of  guilt  by  one  not  party,  not  evidence,  92. 

Confession  of  the  action,  255,  321 ;  of  judgment  is  equivalent  to  a  r»leas« 
of  errors,  317. 

Confession  of  prayer,  wlien  not  evidence  against  indorsee,  488. 

CoNFUsio  BONORUM  ;  366  Agent. 

Confusion  of  boundaries,  when  relieved  in  equity,  400. 

Consideration,  not  implied  from  promise,  130 ;  but  always  from  specialty, 
101;  failing,  money  recovered  back,  131;  so  if  frirolous,  137;  of 
promise  to  pay  debt  of  another,  140;  whether  it  must  be  inserted  in 
the  writing,  140 ;  inadequacy  of  ground  to  vacate  contract,  when, 
425;  of  bond,  must  be  shewn  in  equity,  if  the  circumstances  are 
suspicious,  425,  in  note. 

Conspiracy,  indictment  for,  63 ;  action  for,  when  only  does  it  lie,  63  ;  must 
be  brought  against  several,  63 ;  case  in  nature  of  lies  against  one  or 
more,  63 ;  the  first  lies  only  for  criminal  prosecutions,  63 ;  the  lat- 
ter for  maliciously  suing,  and  demanding  bail  also,  63;  see  Malicious 
Prosecution,  and  63. 

Consultation,  204. 

Continuance,  270 ;   plea  puis  darrein,  271. 

Continuando,  laying  trespass  with,  192. 

Contract  is  an  entire  thing,  134,  150 ;  party  may  refuse  partial  perform- 
ance, 150;  but  may  bind  himself  by  accepting  part,  150,  151 ;  con- 
tract of  hazard,  404;  never  partially  rescinded,  425. 

Contracts,  executed  and  executory,  see  Rescission,  and  425,  465. 

Contribution  between  heirs  in  a  court  of  law.  111,  113;  in  equity, 

Contribution,  490  ;  known  to  common  law,  490  ;  enforced  in  equity,  490 ; 
on  what  principles,  490 ;  and  in  what  variety  of  cases,  490,  491  ; 
never  decreed  between  wrong-doers,  491  ;  not  founded  on  contract, 
but  on  equity,  requiring  equality  of  burden,  491 ;  but  parties  must  be 
in  equalijiire,  491 ;  where  parties  may  be  bound  rateably  only,  490 ; 
surety  of  surety,  490;  supplemental  security,  490 ;  between  heirs, 
491 ;  by  dovveress  or  life-owner,  491 ;  case  of  party  walls,  491 ;  be- 
tween tenants,  491. 

Costs,  323  ;  general  law  of,  323  ;  on  plea  of  plene  ad.  118;  when  not  a- 
gainst  executors  de  bonis  propriis,  120,  143 ;  in  equity,  324 ;  costs 
on  reversal,  323  ;  of  motions,  323  ;  against  executors,  323  ;  securi- 
ty for,  324  ;  payment  how  enforced,  324  ;  see  Pauper  Suits,  and  324, 
325  ;  judgment  for,  how  rendered  where  there  are  several  pleas,  325 ; 
when  no  costs,  or  no  more  costs  than  damages,  325,  326,  247. 

Count,  247;  in  equity,  504  ;  general,  146;  when  they  cannot  be  resorted 
to,  149.     See  Faulty  count. 

Court,  44 ;  of  record,  45. 

Coverture  no  excuse  for  fraud,  430. 

Creditors,  insolvent  debtor  may  give  preference  to  one  of  many,  442. 

Criminalitur,  equity  cannot  proceed  in  cases,  418  ;  modification  of  the 
principle,  418. 

Custody,  defendant  may  plead  in,  273 ;  or  confess  judgment  in,  or  swear 
out,  273. 

Covenants  for  title  which  vendee  may  require,  466  ;  rule  in  England  where 
vendor  delivers  over  his  own  title  deeds,  466 ;  how  where  he  him- 
self was  but  devisee  or  donee,  466 ;  what  covenants  heirs  are  requir-^ 
ed  to  enter  into,  466. 

CoviNANTs  of  seizin  and  for  good  title,  when  broken,  466. 


nil  INDEX. 

CovrNANT,  action  of,  ICO  ;  covenant  real,  ancient  remedy  for  breach  of,  120 ; 
gov!  express  or  implied,  real  or  personal,  joint  or  several,  121  ;  dis- 
tinguished from  a  condition,  121  ;  express  cov.  bind  abbolulcly,  121  ; 
nerer  extended  beyond  the  words,  121  ;  cov.  to  pay  rent,  121  ;  for 
quiet  enjoyment,  how  broken,  122 ;  to  save  harmless,  how  broken, 
122;  not  to  assign  or  underlet,  122;  this  cov.  not  broken  by  act  of 
law,  122;  cov.  for  repairs,  122;  cov.  of  seizin,  of  right  to  convey, 
against  incumbrances  and  for  further  assurance,  122 ;  cov.  secured 
by  bond  or  jjcnalty  sued  for  in  debt  or  covenant,  122;  consequen- 
ces of  the  one  or  the  other  course,  122;  liquidated  damages,  123; 
COY.  mutual  and  independent,  dependent,  simultaneous,  123 ;  con- 
strued dependent  or  not  according  to  intent  and  nature  of  case,  123; 
general  rules  as  to  this,  123,  124;  breach  of,  125;  affirmative  and 
negative,  how  broken,  125;  joint  and  several  cov.  125;  action  of 
against  heir  or  executor,  125  ;  by  and  against  assignees,  126  ;  plead- 
ings, 12G;  declaration,  setting  out  contract,  averments,  and  breach, 
120,  127;  pleas  alhrmative  and  negative,  127;  general  or  special 
tion  est  /actum,  defeasance,  eviction,  release,  accord,  8cc.  127;  evi- 
dence, 127 ;  verdict,  127  ;  measure  of  damages,  in  cov.  to  repair, 
127;  and  in  contracts  for  sale  and  delivery  of  stock,  &.c.  128;  or  in 
contracts  to  replace  stock,  128;  reason  of  difl'erence,  128. 

Damages,  to  what  time  estimated  in  detinue,  82  ;  generally  nominal  in  debt, 
10:2;  how  laid  where  the  debt  is  sterling, 

Damagi:  fkasant,  5  ;  dilliculties  attending  distress  for,  5. 

DtBT,  1)5;  legal  acceptation  of  the  term,  95;  action  of,  when  it  does  or 
does  not  lie,  90;  wager  of  law  in,  90;  when  plaintiff  may  or  may 
not  recover  less  than  his  demand,  90  ;  does  not  lie  against  executor 
on  simple  contract,  and  why,  97;  nor,  semble,  against  the  acceptor 
of  a  bill,  97  ;  lies  on  judgment,  97  ;  interest  in  such  case  how  reco- 
vered,98;  other  cases  of  debt,  98  ;  see  Declaration,  Prof ert,  Breach, 
Instalments,  Plea,  and  Heir. 

Debet  axd  dktinkt,  when  proper  form  of  declaring  against  executor  or  for 
him,  100;  how  against  the  heir,  100,  111. 

Dkckit,  money  obtained  by  recovered  back,  131,  137,  162,  163. 

Dlci-akation  in  debt,  98  ;  on  bond  need  not  set  out  consideration,  101  ; 
alitcr  in  action  on  simple  contract,  98  ;  form  of,  98;  analysis  of,  98, 
he. ;  see  Venue,  Variance,  Slerlin^' money.  Foreign  currency,  and  Pe- 
nalty ;  should  demand  the  whole  of  bond,  though  part  paid,  100; 
on  several  bonds,  100;  when  it  should  demand  interest,  100;  see 
Detei  and  D etinct,  aiwl  100;  how  to  declare  where  name  is  mis- 
ppelt,  Js.c.,  101  ;  on  specialty,  must  shew  it  to  be  scaled,  101;  what 
is  equivah-iit,  101  ;  see  Profcrl,  Breach,  Damages,  Assignee,  Evi- 
dence, and  110;    Verdict,  and  117;   Interest,  and  117. 

Declaration  in  assumpsit,  113;  see  Executors,  and  148;  special  con- 
tract must  be  declared  on,  144  ;  averments  in,  144;  notice  and  re- 
quest, wlien  and  when  not  necessary  to  be  specially  set  forth,  144; 
performance  or  readiness,  when  to  be  averred,  145;  promise  is  the 
gibt,  and  must  be  set  forth,  145;  so,  also,  the  consideration,  145; 
omission  whether  cured,  140;  see  Counts,  General,  and  140;  must 
Bct  out  for  wli.it  the  debt  became  due,  147;  day  of  promise  immate- 
rial, I4H;  breach,  147;  dec.  on  promise  to  pay  debt  of  another, 
need  not  «e//or//t  that  it  was  in  writing,  148. 

Declaration,  its  objec  tand  function,  244,  245,  247;  form  and  constitu- 
ent parts  of,  217  ;  analysis  of,  248  ;  see  Venue,  and  248  ;  must  con- 
form to  the  writ,  250;  variance  how  objected,  250;  rule  for,  251; 
Bee  Non-suit,  Discontinuance,  and  lietraxit,  and  251. 


Deed,  when  good  in  part  though  void  in  part,  443  ;  when  not,  443  ;  when 
as  to  some  creditors,  though  void  as  to  others,  443. 

Default,  251 ;  where  there  is  judgment  by,  for  want  of  appearance,  the 
writ  is  part  of  the  record,  250. 

Defective  execution  aided,  403 ;  but  not  defect  in  privy  examination,  406. 

Defective  title  laid  in  declaration  never  cured,  311,  312;  aliter  Osgood 
title  laid  defectively,  311-'12. 

Defects  in  pleading  cured  by  statute,  313;  cured  by  verdict  at  common 
law,  310,  311,  312. 

Defence  to  the  action  should  answer  to  the  whole,  256,  262. 

Defendant — See  Custody,  and  273. 

Deficiency  in  quantity  of  land  sold,  404. 

Deforcement,  166;  various  species  of,  166. 

Delivery  bond — -See  Forthcoming  bond. 

Delusion,  generctl,  as  to  matter  of  law,  made  a  ground  of  relief,  403. 

Demurrer,  object  of,  266 ;  form  of,  267 ;  always  advisable  where  defence 
is  intended,  274;  general  and  special,  267;  to  dec.  in  whole  or  in 
part,  267;  judgment  against  demurrant  if  he  has  committed  the  first 
fault,  267;  judgment  for  plaintiff  if  there  be  a  good  count,  267;  sO 
for  defendant  if  there  be  a  good  plea,  267;  leave  to  amend,  268; 
failure  to  amend  is  a  waiver  of  leave,  269;  judgment  on  dem.  is  pe- 
remptory, 268;  dem.  admits  facts  well  pleaded,  269;  when  to  de- 
mur or  plead,  270;  dem.  how  tried,  271  ;  must  be  decided  before 
trial  of  issue  in  fact,  268 ;  special  demurrer,  267,  268. 

Demurrer  to  evidence,  form  of,  295 ;  object  of,  298  ;  when  proper,  296 ; 
verdict,  how  found,  296  ;  when  is  a  party  compelled  to  join  in,  296; 
when  not,  297 ;  what  admitted  by,  296,  297 ;  whole  evidence  must 
be  inserted,  297  ;  how  joined,  297  ;  recent  decisions  respecting, 
297;  always  hazardous,  297;  errors  or  omissions,  how  corrected, 
298 ;  new  trial  allowable,  298 ;  on  trial  of,  no  objection  lies  to  the 
pleadings,  298  ;  but  the  party  may  move  in  arrest  afterwards,  298. 

Departure  in  pleading,  263,  264. 

Depositions  in  law  courts,  301 ;  de  bene  esse,  301. 

Description,  see  Variance,  and  99,  101,  102,  272. 

Detinue,  79, 80 ;  for  what  it  lies,  80 ;  though  possession  obtained  tortious- 
ly,  80 ;  essentials  to  the  action,  80 ;  v^hat  right  of  possession  or  pro- 
perty in  plaintiff,  80  ;  identity  of  goods,  80  ;  declaration,  80  ;  omis- 
sion in,  cured,  315;  separate  values  laid,  why,  80;  value  may  be 
exceeded,  why,  80  ;  request  general  and  special,  81 ;  how  should 
executor  declare,  81 ;  or  be  sued,  81;  pleas,  81  ;  general  issue,  81 ; 
five  years'  possession  gives  title,  when,  81  ;  how  to  proceed,  where 
suit  abates  by  death,  81  ;  verdict,  81,  82,  83 ;  should  find  separate 
values,  and  why,  82;  omission  to  find  value  remedied,  317;  other 
omissions  cured,  317  ;  may  find  damages,  generally,  82 ;  must  an- 
swer to  all  the  issues,  82  ;  and  find  damages  for  detention,  82  ;  to 
what  time,  82 ;  hires  subsequent  to  verdict,  not  recoverable,  82 ; 
proceeding  against  purchaser  penc?en<e  lite,  82;  death  or  destruction 
of  the  subject,  on  whom  falls  the  loss,  82,  &.c. ;  how  must  defen. 
avail  himself  of  that  fact,  83 ;  distringas  in  detinue,  83  ;  how  su- 
perseded, 83  ;  when  may  casa  or  fifa  issue,  83 ;  how  awarded,  83 ; 
defect  of  the  execution  at  law,  83  ;  probable  remedy  in  equity,  84  ; 
bail  in  detinue,  see  Bail,  and  84 ;  detinue,  where  property  is  of  less 
value  than  twenty  dollars,  84  ;  wager  of  law,  84. 

Devise  for  payment  of  debts,  when  it  removes  the  bar  of  the  statute  of 
limitations,  414  ;  keeps  alive  debts  not  barred,  415 ;  qiictre,  if  it  re= 
vives  those  already  barred,  415. 
2 


X  fxNDEX. 

DLnsEE,  his  liabiluy  on  bond  of  testator,  113  ;  may  maintain  writ  of  rigKf; 

DiFFEKr.NvE  between  defective  title  and  good  title  defectively  laid,  311,  312= 

l)iL\TORY  ;y/ert»,  i2o3  :  to  jurisdiction — in  disability — in  abatement,  253; 
liow  to  conclude,  255  ;  order  of  pleading,  254  ;  judgment  upon 
them,  255;  plaintift'  confessing  error  pays  no  costs,  255. 

Discovery,  431  ;  ground  of  eq.  jurisdiction,  431,  435  ;  but  it  must  not  be 
only  colorable,  435  ;  mere  bill  of,  dillers  from  bill  also  praying  re- 
lief, 431  ;  the  latter  requires  affidavit  of  loss  of  bond,  &.C.— the  for- 
mer does  not,  433..  431;  mere  bill,  for  whom,  against  whom,  and' 
of  what  it  lies,  431,  432  ;  for  what  not,  432  ;  never  to  compel  pur- 
chaser for  value  without  notice  to  impeach  his  own  title,  4i2,  433  ; 
nor  against  tort-feasor  to  enable  the  party  to  maintain  an  action,  433 ; 
nor  where  it  will  subject  defendant  to  penalties,  439;  lies  for  disco- 
very of  lost  bonds,  deeds,  8cc.,  433;  essentials  to  bill  of,  433,  434  ; 
form  of  it,  431;  parties  to,  431;  at  what  time  it  may  be  brought, 
431;  how  finally  disposed  of,  431;  plaintitf  must  pay  costs,  434 ; 
bill  for  discovery  and  relief,  435. 

DiscovNT,  see  Ollset. 

Discontinuance,  IGG,  251,  313;  by  improperly  demurring,  105. 

Disseisin,  1(>5;  of  incorporeal  hereditaments,  1G5  ;  by  election,  1G5;  what? 
constitutes  disseisin,  1()5. 

DisTCRBANCE,  199;  of  right  of  way,  199;  right  how  to  be  set  forth,  200; 
justification  under  right  of  way,  must  be  pleaded,  200. 

Distringas,  342  ;  issues  received  under,  how  disposed  of,  312  ;  how  to  be 
levied,  343;  how  superseded  in  part,  313;  remedy,  when  it  is  in- 
effectual, 313. 

Distringas  nuper  vice  comitem,  370. 

Distress,  remedy  by,  5;  for  what,  5;  for  rent,  5 ;  for  taxes,  Sec,  5 ;  for 
damagc-fcasant,  5  ;  distress,  by  grantee,  of  part,  8  ;  distress  for  too 
much,  8  ;  damages  in  such  case,  8  ;  distress  for  too  little,  effect  on 
further  demand,  8  ;  what  may  be  distrained,  8  ;  what  exempt,  8,  9, 
10;  goods  of  stranger,  9 ;  his  remedy,  10;  disposition  of  distres- 
ses, 10  ;  how  and  by  whom  made,  1 1  ;  not  for  more  than  five  years' 
rent,  11  ;  how,  if  goods  arc  carried  off,  11  ;  doors  cannot  bo  broken, 
11;  distress  must  be  reasonable,  11;  rescue,  when  justifiable,  12; 
goods  distrained  to  be  sold,  12;  see  Pound,  and  12;  replevy  bond, 
and  12,  13  ;  olficer  alone  can  make  distress  and  sale,  or  take  bond, 
13  ;  irregular  distress,  void  ab  initio,  1 1  ;  statutory  remedy  for  wrong- 
ful distress,  14  ;  judgment  in  replevin,  14  ;  rent  not  merged  by  bond 
or  note,  14  ;  unless  there  be  judgment  thereon,  14  ;  distress  must  not 
be  till  the  day  after  due,  15;  nor  after  tender,  J5;  tenant's  remc^ 
dies,  79  ;  see  Rent. 

Divorces,  jurisdiction  in  cases  of,  495. 

Drln  KEN  NESS,  when  a  ground  for  vacatins^  a  contract,  425. 

Dli'licitv,  2.5S,  2G1  ;  what  not,  258,  259,  2G0,  2G8. 

Ejectment,  object  of  this  action,  170  ;  original  nature  of  it,  171  ;  present 
fictitious  character,  172;  how  commenced,  173;  service  of  dec. — 
notice  common  order— and  other  preparatory  ste])s,  173;  declara- 
tion, 173  ;  no  exception  to  be  taken  to,  31G  ;  who  must  join  in,  174  ; 
joint  demises,  when  proper,  174  ;  several  demises,  174  ;  ej.  by  one 
tenant  in  common  against  another,  174  ;  infant  may  maintain,  174, 
and  corporation,  175;  lies  against  several,  175;  limitation,  175; 
proof  of  tiile,  170;  pi.  must  recover  by  strength  of  his  own,  17G ; 
proof  by  def.  of  outstanding  title,  170,  177;  verdict,  177;  dama- 
ges; 177;  effect  of  judgment,  177;  execution,  177- 


INDEX.  XI 

Elegit,  372;  binds  from  date  of  judgment,  373 ;  reaches  trust  estates,  874 , 
and  freehold  rents,  375 ;  and  pledges,  374 ;  but  not  mere  equities, 
374,  375  ;  nor  a  dry  reversion,  375  ;  binds  goods  from  delivery  of  ex- 
ecution to  sheriff  only,  375  ;  beasts  of  plough  ])rivileged,  375;  goods 
taken  delivered  at  value,  375 ;  elegit  only  extends  moiety  of  land, 
375 ;  how  two  elegits  may  cover  the  whole,  375,  378 ;  lien  of,  how 
preserved,  375;  efl'ect  if  judgment  is  not  kept  alive,  37G;  lien  how 
revived,  376 ;  effect  of  revivor  on  intermediate  rights,  377  ;  as  to 
the  debtor,  377 ;  or  purchaser,  377  ;  when  superior  to  casa-lien, 
378;  effect  of  death  of  defendant  in  execution,  upon  the  Hen,  380; 
elegit — how  proceeded  in,  381 ;  may  issue  on  decree  in  equity,  337; 
see  Execution. 

Embezzlement,  132. 

Enquiry,  writ  of,  321. 

Entry,  remedy  by,  167;  how  tolled,  168  ;  barred  by  time,  168,  169;  how 
to  be  pursued,  169  ;  forcible  entry  and  detainer,  remedy  for,  169. 

Entry  and  location,  how  made,  187  ;  imperfect — subject  to  caveat,  187; 
general  and  particular  description  in,  187. 

Equal  equities,  between,  the  law  prevails,  395. 

Equities,  barred  by  time,  417;  not  subject  to  levy,  but  reached  in  equity, 
361,  382  ;  see  Execution  and  Fieri  Facias. 

Equity,  387 ;  Mr.  B.'s  view  of  eq.  jurisdiction,  387 ;  power  to  mitigate  ri- 
gor of  law,  387 ;  to  construe  statutes  by  equity,  388 ;  fraud,  acci- 
dent, and  trust,  388  ;  mode  of  proof,  391 ;  of  trial,  391 ;  of  relief, 
392;  construction  of  securities  for  money,  392;  trusts  or  second 
uses,  392  :  maxims  of  equity — see  Equitas  sequitur  legem,  and  393 ; 
see  Equal  Equity,  and  395  ;  he  who  asks  must  do  equity,  395 ;  must 
have  clean  hands,  395,  396  :  advantages  of  the  system,  397,  398 ; 
subjects  of,  classified,  397 ;  difficult  to  define  boundaries,  397 ;  ju- 
risdiction not  taken  away  by  extension  to  law  courts,  398-'9  ;  con- 
siders that  done  which  ought  to  have  been  done,  460 ;  jurisdiction 
in  avoiding  illegal  contracts,  489;  never  will  lend  them  its  aid,  489; 
jurisdiction  in  ecclesiastical  cases,  495. 

Equity,  courts  of,  mode  of  proceeding  in,  496  ;  see  Practice  in  Equity. 

Equitas  sequitur  legem,  393 ;  in  construction  of  statutes,  of  wills  and 
limitations,  and  in  descent  of  trust  estates,  391-5 ;  and  in  admi- 
nistration of  legal  assets,  395 ;  see  Merger  of  Equity,  395. 

Error,  writ  of,  327;  how  obtained,  329;  terms  of  allowance,  329;  who 
may  sue  out,  330  ;  must  be  party  or  privy,  330 ;  case  of  feme  sole, 
331 ;  all  parties  must  be  joined  at  law,  331 ;  see  Summons  and  Se- 
verance, 331 ;  when  it  operates  as  a  supersedeas,  332;  effects  of  it, 
332;  pleas  to,  332-3  ;  how  procured  on,  332-3;  when  dismissed, 
333;  assignment  of  errors,  332 ;  judgment  in,  333;  never  allowed 
till  final  judgment,  329;  lies  even  after  judgment  executed,  329;  and 
money  recovered  back,  329;  bond  on  obtaining,  331. 

Error  coram  nobis,  328  ;  granted  ex  debito  justitiae,  328 ;  disused  and 
superseded  my  motion,  328-'9. 

Errors  clerical,  329  ;   when  and  how  amendable,  329. 

Errors  in  final  judgment  amendable  by  statutory  provision,  45. 

Escape,  347;  what  amounts  to,  347;  constructive,  347  ;  actual,  348;  vo- 
luntary, 349  ;  negligent,  349 ;  voluntary  return  before  action,  effect 
of,  350  ;  fresh  pursuit,  350 ;  excuses  for  negligent  escapes,  349 ;  form 
of  finding  required  by  statute,  350  ;  proceedings  on  escape  warrants, 
350  ;  analysis  of  the  statute  of  escapes,  350,  351 ;  see  Prison  Rules, 
and  351 ;  see  Bounds  Bond,  and  351 ;  new  casa  against  debtor,  352; 
officer  when  liable  for  escape  on  mesne  process,  352 ;  extent  of  li- 


Xii  INDEX. 

ability  for  escape  on  final  process,  353,  351 ;  how  officer  is  to  be 
proceeded  nfraint^f,  358  ;  oilicer  liable  in  case  for  escape  before  judg- 
ment,  and  in'^dcbt  for  escape  after  jndginent,  1G2, 
EsTorrEL,  257;  effect  of,  257;  varions,  258;  by  record,  deed,  or  in  pais.. 
258  ;  recital  does  not  work,  258  ;  must  be  neutral,  258  ;  how  to  be 
replied,  258  ;  demurrer  to,  or  avoidance  of,  258. 

EsTROPEMEXT,   198. 

Evidence,  2S8  ;  written,  288  ;  records,  268  ;  ancient  deeds,  269  ;  recent 
deeds,  289 ;  other  writings,  289 ;  best  evidence  must  be  produced, 
289;  rule  explained  in  note,  289;  hearsay,  289;  books  of  account, 
289  ;  entries  in  books,  how  made  evidence,  290 ;  see  Witnesses, 
and  290. 

Evidence  in  action  of  debt,  116 ;  on  plea  of  7ion  est  factum,  116  ;  see  Sub- 
scribing- Witness,  and  116;  on  \i\ca.  of  plene  ad.  for  plaintiif,  116; 
for  defendant,  117  ;  jurors  evidence,  how  produced,  298. 

Examination  of  witnesses,  course  of,  298. 

Execution,  337  ;  only  on  final  judgment  at  law,  337  ;  alitcr  in  equity, 
337;  must  issue  within  the  year,  337 ;  how  revived  and  in  what 
cases,  see  Judgment,  and  337  ;  what  excuses  the  failure  to  issue, 
338,342;  variance  from  judgment  fatal,  338;  how  objected,  339; 
irregular  ex.  how  quashed,  339;  from  what  court  ex.  must  issue, 
339  ;  to  what  county,  339  ;  good,  thougli  not  directed  to  any  sheriff, 
317;  in  whose  name,  339  ;  effect  of  death  of  either  party  after  judg- 
ment, 310;  or  of  defen.  in  execution,  380;  see  Scire  Facias,  and 
340;  when  not  arrested  by  death,  341 ;  W'hen  plaintiff  may  sue  se- 
cond nxccution,  341  ;  there  cannot  be  at  the  same  time  two  ex.  of 
different  kinds,  34],  356;  see  Hub.  Fac.  Seisinam,  and  342;  Deti- 
nue, and  342;  Distringas,  and  342;  Casa,  and  343  ;  suing  out  se- 
cond ex.  is  a  waiver  of  the  first,  365;  should  be  quashed  if  d.  bond 
is  quashed,  36(J ;  motion  to  quash,  381;  proceeding  on,  382;  sale 
under  execution,  369;  relief  in  equity  on  executions,  382,  383; 
against  mere  equities,  382;  against  fraud,  conveyances,  382  ;  when 
only  afforded,  386;  in  what  manner,  385;  see  Fifa  and  Casa,  Le- 
vari Facias,  Elegit ;  execiition  against  heirs,  114. 

ExECiTORY  AGREEMENT  without  Consideration  is  nudum  pactum,  25  ;  effect 
of  injunction  upon  an  execution,  472;  before,  472;  or  after,  472; 
or  where  money  has  been  made,  472. 

Executor,  |)leas  by,  in  debt,  114;  ne  unques  executor,  114;  when  mat- 
ter of  abatemont  or  of  bar,  114  ;  what  tried  under  it,  114  ;  see  Re- 
tainer, and  115  ;  how  he  should  ])lead,  115  ;  not  chargeable  beyond 
the  assets,  115  ;  what  amounts  to  admission  of  assets,  115  :  verdict 
against  on  jilenc  ad.  conclusive  in  action  of  devastavit,  115  ;  indul- 
gence to,  115;  sec  Pknc  ad.,  and  115:  replication  per  fraudem, 
115;  assumpsit  against  them,  143;  when  and  when  not  liable  to 
costs,  143,  161  ;  joinder  in  action  in  reference  to  executors,  206, 
207;  when  chargeable  on  promise  to  answer  out  of  their  own  es- 
tate, 138,  139;  how  they  should  declare,  148;  what  promises  they 
may  join  in  assumjjsit,  148;  what  may  not  be  joined  in  actions 
against  tliem,  148;  |)laintiff  must  prove  his  debt,  though  the  only 
plea  be  plcne  ad.,  151  ;  when  only  liable  to  arrest  on  casa,  345;  re- 
lieved in  equity  against  accidental  depreciation,  401,  402. 

ExTECTANriEs,  sales  of  discounlonanced,  426. 

Extortion  cannot  be  enforced,  137;  money  paid  by  recovered,  132. 

Factors,  when  to  sue  in  their  own  names,  141  ;  when  not,  141  ;  cannot 
pawn  goods,  Ml  ;   how  answerable,  141  :  how  they  should  sell,  141. 


INDEX.  Xlll 

FaLSB  IMPRISONMENT,  wliat  Constitutes,  66  ;  as  it  respects  the  nature  of  the 
detention,  66;  or  its  unlawfulness,  66;  either  for  want  of  authority  ' 
or  abuse  of  it,  66;  arrest  on  Sunday  illegal,  66;  exception,  66  ;  re- 
medy for  false  impr.  66,  70  ;  mainprize,  66;  homine  replegiando, 
66 ;  see  Habeas  Corpus,  and  67  ;  see  Arrest,  and  71 ;  action  lies  not 
if  writ  be  not  void,  71 ;  lies  for  arresting  wrong  person,  71  ;  or  against 
one  not  an  officer  for  arresting  a  suspected  but  innocent  person, 
71  ;  not  so  as  to  peace  officer,  71  ;  officer  not  responsible,  though 
process  is  irregular,  71  ;  aliter,  if  no  jurisdiction,  71 ;  lies  for  wrong- 
ful continuance  of  imprisonment,  71 ;  or  for  oppression  and  cruelty, 
71 ;  lies  not  against  a  judge  or  justice,  72  ;  plaintiff  and  officer  may 
sever  in  defence,  72;  consequence  if  they  do  not,  72;  law  of  costs,  72. 

Faulty  count,  see  Jeofails,  and  317  ;  motion  to  disregard,  268. 

Federal  court,  judgment  in,  its  effect  in  State  tribunals,  284. 

FsiEs,  action  for,  133. 

Feme  covert,  defective  privy  examination  of,  not  aided,  406. 

Fieri  facias,  359;  how  levied,  .359,  360  ;  sheriff's  power,  359;  on  whoso 
property,  360  ;  not  on  a  stranger's — nor  specific  legatee's — nor  tes- 
tator's goods  for  executor's  debt — nor  separate  property — nor  debt 
due  from  sheriff,  360  ;  but  he  may  return  "ready,"  360;  execution 
of  is  an  entire  thing,  360  ;  may  be  levied  on  lease  for  years,  361 ;  on 
growing  crops,  361 ;  not  on  mere  equities,  361 ;  but  may  on  trust 
property,  361 ;  when  ordered  to  be  satisfied  oat  of  defen.  money  in 
sheriffs  hands  ;  360  ;  lien  of,  360,  363  ;  continues  till  forth,  bond 
forfeited,  360  ;  in  what  manner  sheriff  may  take  property,  362  :  ex- 
tent of  lien,  363  ;  how  lost,  363  ;  by  collusion  or  negligence,  363; 
by  release  of  the  property,  .363,  364  ;  or  plaintiff's  direction  to  leave 
it  with  defendant,  364  ;  aliter,  if  it  be  the  act  of  the  sheriff,  364 ; 
effect  of  giving  up  the  property,  upon  the  judgment,  364,  365  ;  su- 
ing out  second  execution  is  a  waiver  of  the  first,  365;  proceedings 
after  a  levy,  367  ;  fifa  should  be  quashed,  if  the  bond  taken  under  it 
be  quashed,  .366. 

Forbearance,  unspecified,  no  consideration,  137. 

Forcible  entry  and  detainer,  remedy  for  by  statute,  169. 

Foreign  currency,  how  declared  for,  99. 

Foreign  law,  how  proved,  283  ;  unwritten,  how  proved,  28.3. 

Foreign  judgment,  see  Judgment,  and  278,  279,  280. 

Foreign,  States  of  the  Union  whether  foreign  to  each  other,  280,  281. 

Forfeiture,  see  Penalties  and  Forfeitures. 

Forthcoming  bond,  357, 365 ;  a  barrier  while  in  force  to  farther  execution, 
357;  not  a  satisfaction,  357,  366  ;  if  quashed,  new  ex.  may  issue, 
357  ;  see  Appeals,  and  336 ;  effect  of  forfeited  f.  bond  or  lien  of 
execution,  365,  366 ;  quashing,  366,367;  ex.  should  be  quashed, 
also,  365,  .366;  faulty,  -367;  must  fix  day  and  place  of  sale,  368; 
property  at  debtor's  risk,  368  ;  consequence  of  failure  to  deliver  any 
part,  368  ;  when  property  is  to  be  delivered,  368  ;  when  is  the  exe- 
cution on  appeal  a  part  of  the  record,  368;  when  notice  of  motion 
will  be  presumed  on  appeal,  368 ;  various  other  matters  respecting, 
369. 

Fraudulent  transaction,  action  will  not  lie  upon,  137. 
Fraudulent  conveyance,  in  the  way  of  execution  removed,  382 ;  see  Cho- 
ses  in  Action,  and  383;  donees,  how  proceeded  against  in  equity,  385. 

Fraud,  general  jurisdiction  of  equity  in  cases  of  fraud,  419;  what  cogniza- 
ble at  law,  419  ;  fraud  in  relation  to  wills,  how  tried  with  us,  419; 
eq.  jurisd.  whose  will  is  procured  by  fraud,  419 ;  or  suppressed,  420  ; 
essentials  in  this  case,  420 ;  suppressor  how  dealt  with,  420 ;  deli- 


Xiv  INDEX. 

cacv  of  this  jiirisdictioB,  421  ;  fraudulent  devises,  421 ;  frauds  in  re- 
lation to  deeds,  421  ;  in  their  execution,  421  ;  or  suppression,  421  ; 
or  preventing  execution  of,  421 ;  frauds  in  contracts,  generally,  421 ; 
see  Sug^gestio  falsi,  and  421;  sec  Oppression  and  Undue  Influence, 
and  422,  423  ;  see  Incapacity  and  Imbecility,  424  ;  see  Drunkenness 
— Old  Age — Inadequate  Consideration,  and  425  ;  see  Contracts,  ex- 
ecuted and  executory,  and  425 ;  see  Underhand  Agreements,  and  427 ; 
see  Notice,  and  428 ;  Lis  pendens,  and  42S,  429  ;  fraud  in  obtaining 
judgments,  430  ;  frauds  on  auctions,  430  ;  infancy  and  coverture  no 
excuse  for  fraud,  430  ;  interests  obtained  through  fraud  of  third  per- 
sons, 430,  431,  443. 

Fkeigut,  mother  of  wages,  142;  when  due,  142;  what  excuses  failure  to 
deliver  cargo,  142. 

Gamixg,  money  lost  at,  recovered  back,  132. 

Genkral  issue,  25G ;  special  defence  not  evidence  under  general  issue,  250. 

Gist  of  action,  310. 

Giving  color,  2G3. 

Governor,  how  to  be  sued,  241. 

Gross,  sale  in,  404. 

Guardian  may  sue  for  abduction  of  ward,  74. 

Haleas  CORPUS  ad  respondendum,  67  ;  ad  satisfaciendum,  67  ;  ad  testifi- 
candum, 67;  when  awarded,  67;  on  what  terms,  67 ;  provision  ia 
case  of  probate  of  wills,  67  ;  hub.  cor.  ad  faciendum  and  recipiendum^ 
67  ;  eiTcct  of  it,  67  ;  when  to  be  refused,  68 ;  hab.  cor.  ad  subjicien- 
dum, 68;  provisions  of  the  act,  68,  69;  commentary  on  it,  68,  69, 
70  ;  extends  to  restraints  of  husband  or  father,  70. 

flxuERE  facias  seisinam,  342;  hab.  fac.  possessionem,  342. 

Health,  injuries  affecting  and  remedies  for,  56,  57. 

Heir,  must  be  charged  in  debet  and  detinet,  111  ;  declaration  against  the 
heir  of  the  heir.  111  ;  in  actions  against  the  heir,  all  should  he 
parties,  HI;  contribution  between,  how  com])elled,  111,  113;  prin- 
ciples of  the  action  against  the  heir.  111  ;  why  bound.  111  ;  bound 
by  reason  of  assets  descended.  111  ;  land  bound  from  teste  of  the 
writ  only,  111;  the  manner  of  his  pleading  at  common  law.  111; 
how  he  must  now  plead,  112;  what  his  best  course,  112;  whether 
relief  to  one  where  others  have  wasted,  113  ;  sec  Devisee,  and  113; 
judgment  and  execution  against  him,  114  ;  never  liable  beyond  the 
assets,  111;  guardian  not  bound  to  apply  rents  and  profits  to  pay- 
ment, 114  ;  when  decree  for  sale  instead  of  extent,  114  ;  purchaser 
before  suit  and  without  notice  protected,  114  ;  contribution  betweea 
heirs,  1 13  ;  cxccu.  not  to  be  levied  on  one  only,  113  ;  see  Expectan- 
cies, and  426 ;  relief  in  equity  on  judgment  against  him,  383  ;  lands 
of,  whether  subjected  before  personalty  is  exhausted,  384  ;  infancy 
of,  does  not  impede  decree  for  sale,  384  ;  when  the  whole,  and 
when  a  moiety  only,  extended,  384  ;  execution  on  judgment  against 
him,  3S7. 

Husband  n)ay  submit  f(jr  his  wife,  30  ;  may  maintain  trover  for  wife's  goods, 
87;  when  she  must  join,  may  join,  or  must  not  join,  67;  trover  lies 
against  him  for  her  conversion 

iLLtcAL  cont.-act,  money  paid  on,  when  recovered  back,  132;  when  not, 
132  ;   not  made  good  by  rci)eal  of  statute,  132. 

Imdecilitv,  421. 

Imparlance,  252. 

Implied  assumpsits,  when  only  raised,  133 ;  raised  where  no  express  ngree- 
mcnt — or  it  hn?  been  rescinded — or  is  otherwise  at  an  end — or  the 
contract  has  been  pciforincd  and  a  simple  debt  remains,  134  ;  does 


INDEX.  XV 

not  lie  where  presumption  of  contract  is  excluded,  13G  ;  or  for  vo- 
luntary curtesy,  136;  or  for  sei-viccin  expectation  of  a  legacy,  13G; 
or  on  an  illegal  transaction,  136,  137  ;  or  for  demand  due  by  spe- 
cialty, 137  ;  distinctions  as  to  this,  137  ;  does  not  lie  on  contract 
obtained  by  fraud,  138. 

Imprisonment,  false,  see  False  Imprisonment. 

Inadequacy  of  price,  425,  426,  427. 

Incapacity,  424. 

Indebitatus  assumpsit,  when  it  lies,  130,  146  ;  its  form  and  character, 
146 ;  see  Implied  Assumpsit,  and  133,  131 ;  lies-  when  express 
agreement  is  at  an  end,  133,  134;  but  not  if  it  be  still  open  and 
subsisting,  134,  147;  lies  only  for  money,  134  ;  never  for  stock,  138; 
lies  not  for  money  paid  voluntarily  or  in  consequence  of  suit,  138; 
or  in  consideration  of  moral  obligation,  138;  will  it  lie  for  indorsee 
against  indorser,  144. 

Indemnifying  bond,  369. 

Infancy,  plea  of,  158;  what  may  be  replied,  158,  159  ;  no  excuse  for  fraud, 
430. 

Injunction,  467;  has  sup^erscded  audita  querela,  326;  terms  on  which  it' 
is  granted,  467;  to  judgment  at  law — sales  under  trust  deeds,  468  j 
effect  of  injunction,  468  ;  how  enforced,  468  ;  vA\o\\Gi\ pendente  lite, 
469;  remedy  in  case  the  chancellor  refuses  it,  469,489;  to  stay 
waste,  469  ;  or  prevent  nuisance,  470;  to  restrain  negotiation  of 
negotiable  securities,  471 ;  to  restrain  infringement  of  parties,  471 ; 
or  pleading  an  iniquitous  plea,  471  ;  or  proceeding  by  another  tri- 
bunal, 471  ;  to  stay  a  trial,  472  ;  after  trial,  472  ;  to  stay  execution,. 
472  ;  acts  not  on  the  court,  but  the  party,  472  ;  in  cases  of  gaming,, 
usury,  &c.,  472 ;  not  on  the  ground  of  right  to  unliquidated  dama- 
ges, 472 ;  of  purchaser  to  restrain  recovery  of  purchase  money,  seo 
Purchase  Money,  and  473  ;  either  by  enforcing  deed  of  trust,  or  by 
execution,  473  ;  distinction  herein,  473,  474  ;  difficulties  in  exercise 
of  this  jurisdiction  in  these  cases,  474  ;  injunctions  to  judgments 
on  the  ground  of  surprise,  475 ;  principles  settled  on  this  subject, 
475,  476,  477;  whether  allowed  on  the  ground  of  new  evidence, 
478,  479,  480  ;  on  the  ground  of  appeal  to  defendant's  conscience, 
480  ;  excessive  damages,  480  ;  injunction  allowed  to  party  claiming 
property  taken  in  execution,  480;  rules  as  to  this  matter,  480  ;  seo 
Quia  Timet,  and  481 ;  see  Bill  of  Peace,  and  484  ;  see  Bill  of  In- 
terpleader, and  484  ;  how  injunction  is  dissolved,  486  ;  sec  Answer, 
and  486  ;  when  defendant  may  move,  487,  468;  rules  in  equity  as 
to  this  matter,  488;  motion  to  dissolve  does  not  determine  the  cause, 
488;  motion  to  reinstate,  489  ;  remedy  if  refused,  489  ;  appeal  from 
dissolution  revives  injunction,  489 ;  security  required  on  such  ap- 
peal, 489 ;  effect  of  injunction,  see  Execution,  and  472. 

Injuries,  with  force  and  without  force,  51 ;  see  Personal  Security. 

Insimul  computassent,  129;  exact  sum  need  not  be  proved,  151;  evi- 
dence of  amount  current  improper,  151. 

Insolvent  debtors,  354  ;  may  prefer  one  creditor  to  others,  442. 

Instalments,  action  for  money  due  by,  103;  how  brought,  103.  Sec 
Index  to  Book  2. 

Instruction  should  never  be  given  as  to  the  weight  of  evidence,  293. 

Interest,  purchaser  chargeable  with,  467. 

Interest  on  rent,  see  Rent;  in  action  of  debt,  117  ;  office  judgment  for, 
239,  275  ;  in  debt  on  judgment,  -337 ;  payments  made,  set-off  against 
principal,  337  ;  when  docs  interest  begia  to  run,  408. 

Intrusion,  164= 


Xvi  INDEX. 

Issuable  plea,  237;  demurrer  so  considered,  239;  and  stat.  of  limitations, 
ii3*J ;  but  not  a  i)lca  in  abatement,  239. 

Issue,  what,  215,  2(35;  its  object,  function,  and  advantage,  215  ;  its  qual- 
ities, 24() ;  materiality,  singleness,  and  certainty,  216 ;  made  up  by 
atlirmativc  and  negative,  200,  266;  see  Certainty,  and  260;  how 
made  up,  265;  must  be  single — certain,  265 ;  material,  266;  dis- 
tinction between  material  and  immaterial  issues,  266,  314  ;  informal, 
how  cured,  313  ;  issue  in  law,  or  fact,  266;  in  fact,  272;  issue  in 
fact  admits  pleading  to  be  good,  269;  see  General  Issue,  and  256. 

Issues  must  all  be  answered  to  by  the  verdict,  See  Venire  denovo,  and  314. 

Jeofails,  313;  what  defects  cured  by  verdict,  313;  see  Fariancc,  and  313  ; 
inisplcadhtg,  and  313  ;  discontinuance,  and  313  ;  similiter,  and  313; 
issue  informal,  and  313  ;  gist,  and  310  ;  mistakes  in  name,  &c.  314  ; 
amendments  considered  as  made,  314  ;  see  Averment,  want  of  cured, 
and  315  ;  sec  Breach,  and  315  ;  detinue,  and  315  ;  recital  and  quod 
cum,  and  315;  blanks,  and  315  ;  Jurisdiction,  and  315;  averments 
omitted  and  cured,  315;  mistake  of  action  cured,  316;  and  all  de- 
fects of,  form,  or  substance,  316  ;  see  Nihil  Dicit,  and  316  ;  default, 
and  316,  and  the  note  tiicrc  ;  faulty  count  how  treated,  317;  con- 
fession of  judgment  cures,  317;  see  Execution,  and  317;  errors 
cured  as  to  all  defendants  if  cured  as  to  one,  317. 

JoiNDEU  OF  actions,  201 ;  of  different  iorms,  204;  trust  of  property  in, 
201,  205  ;  joinder  of  several  rights  of  action  or  liabilities,  205  ;  when 
not  admissible,  206 ;  sec  Executor,  and  206,  207 ;  misjoinder,  how 
to  be  objected,  207 ;  consequence  of,  207  ;  how  consequences  avoid- 
ed in  some  cases,  207,  20«  ;  see  Parties,  and  208 ;  all  parties  to  as- 
sumpsit must  join,  151 ;  distinction  between  contract  and  tort  where 
parties  are  not  joined,  151. 

Joint  action,  215,  275;  judgment  must  also  be  joint,  216;  proceeding 
where  process  is  only  executed  on  part,  275,  in  note. 

Joint  defendants,  error  cured  as  to  one,  cured  as  to  all,  317. 

Joint-tenants,  join  in  trover,  87  ;  one  can  support  the  action  against  the 
other,  only  where  the  chattel  has  been  destroyed  by  him,  88. 

Journey's  AtcouNTs,  156. 

Judgment,  321 ;  interlocutory  and  final,  321,323  ;  its  incidents,  301,  320  ; 
how  suspended  or  arrested,  302;  causes  of  suspending,  see  New 
Trial,  and  302  ;  arrested,  309,  and  Chitty's  note  there  ;  for  intrinsic 
canses,  309;  relates  to  first  day  of  the  term,  373  ;  by  confession 
equal  to  release  of  errors,  317;  waiver  of  plea  equal  to  confession, 
317;  confession  of  judgment  on  d.  bond,  releases  errors  in  first 
judgment,  317;  if  judgment  reversed,  money  paid  under  it  maybe 
reclaimed,  132;  unless  voluntarily  paid,  138;  judgment  of  restitu- 
tion, 336  ;  plea  of  former  judgment  when  a  bar,  159  ;  joint  may  be 
revived  against  decedent's  representatives,  341,357;  jud.  of  respon- 
deat ouster,  321  ;  runs  out  of  date  if  not  kept  alive,  337,  37C> ;  how 
kept  alive,  377  ;  how  revived,  376;  clfcctof  revivor,  376;  when  and 
when  not  prcsutned  to  be  satisfied,  376 ;  is  an  entire  thing  333; 
whether  reversible  in  part,  333  ;  not  amendable  after  the  term,  45  ; 
cxce|)t  under  the  statute,  45;  in  debt,  how  rendered,  117,  118; 
where  money  is  due  by  instalments,  118;  or  on  bond  with  collateral 
condition,  118;  how  rendered  on  plea  oCplcne.ad.,  119;  judgment, 
quando  accidtTint,  119. 

Judgment  of  domestic  court,  conclusive,  278  ;  plea  to  debt  on,  278. 

Judgment  ov  foreign  <;ouut,  only  conclusive  in  rem,,  279;  or  when  a- 
gainst  plaintiff,  279,  280  ;  or  when  its  existence  only  is  the  question, 
280  ,  Us  force  m  other  caacs,  279 ,  plea  to  action  on,  278,  279. 


INDEX.  xvn 

Judges,  how  to  be  sued,  241 ;  proceedings  where  a  judge  is  interested  in  a 
cause  depending  in  his  own  court,  309. 

Judicial  sales  not  lightly  set  aside,  426. 

JuRisDicTiOxN,  in  personal  actions,  231;  want  of  averment  that  cause  of 
action  is  within,  315  ;  equitable  always  exists  as  to  accounts  against 
stewards,  &c.,  417. 

Jurors,  who  may  be,  2S6 ;  see  Challenges,  and  286. 

Jury,  trial  by,  284  ;  how  summoned  and  impanelled,  284,  288  ;  see  Chal- 
lenges, and  286 ;  their  province,  293,  295  ;  confined  till  they  agree, 
299;  see  Verdict,  and  299;  withdrawal  of,  299. 

Laches,  no  relief  where  there  is,  402. 

Law,  foreign,  how  proved,  283. 

Legacy,  restriction  against  suing  inefficient,  31. 

JjEvari  facias,  371. 

Libel,  action  for,  62;  what  actionable,  62;  an  indictable  offence,  62; 
truth  of,  a  good  justification  in  civil  suit,  62  ;  limitation  to  actions 
for,  63  ;  what  amounts  to  publication,  63  ;  libel  by  pictures,  inuen- 
does  and  averments  necessary,  63. 

Lien,  86;  to  what  extended,  86;  express  or  implied,  86;  general  or  spe» 
cial,  66  ;  factors,  manufacturers,  innkeepers,  carriers,  and  attorneys 
lien,  86  ;  see  Fifa,  and  363;  see  Elegit,  and  377. 

Life,  security  of,  one  of  the  personal  rights,  51. 

Limbs,  injuries  to,  52;  how  remedied,  52;  when  justifiable,  52;  limit  to 
the  right  of  self-protection,  52;  when  previous  request  is  necessa- 
ry, 52 ;  see  Battery. 

Limitations,  statute  of,  152,  257;  use  of,  257  ;  lex  fori  governs  the  plea 
of,  152  ;  against  what  demands  it  runs,  152;  items  within  five  years, 
152;  exception  in  the  statute  as  to  merchants'  accounts,  153;  re- 
tail dealers,  153  ;  statute  must  be  pleaded,  154  ;  "  beyond  sea,"  its 
meaning  in  the  statute,  154 ;  Vvhat  cases  not  within  the  exceptions 
of  the  statute,  154;  absconding  debtor  cannot  plead  the  act,  154; 
effect  of  statute  on  executors  as  plaintiffs,  154  ;  or  as  defendants, 
155;  commencement  of  its  running,  155,  157;  what  prevents  its 
attaching,  155;  acknowledgment  or  new  promise,  155;  acknow- 
ledgment by  one  of  several  partners,  156;  or  by  executor,  156;  bill 
for  discovery  of  new  promise  will  not  lie,  156;  effect  of  suing  out 
process  upon  the  bar,  156;  bill  inequity  insufficient,  156,  157;  sta- 
tute how  to  be  pleaded,  157;  when  a  bar  to  demand  for  rent,  7 ; 
vvhat  time  a  bar  to  right  of  entry  and  in  real  actions,  168  ;  once  run- 
ning never  stops,  175;  disabiliiies  cannot  be  tacked,  175;  does  not 
run  against  continuing  trust,  176  ;  runs  in  favor  of  tort  feasors  even 
in  equity,  176;  only  runs  where  possession  is  adverse,  176;  does 
not  protect  squatters,  185 ;  binds  in  equity  as  at  law  when  the  juris- 
dictions are  concurrent,  412,  413;  see  Presumption  and  Stale  De- 
mand, and  413;  does  not  run  against  a  trust,  413;  what  kind  of 
trust  excepted,  413  ;  it  must  be  continuing,  414  ;  exception  does 
not  apply  except  between  the  c.  q.  t.  and  his  trustee,  414 ;  effect  of 
devise  for  payment  of  debts  on  the  bar  of  the  statute,  414,  415,  416; 
does  not  run  against  a  fraud,  413,  416;  but  it  runs  against  a  mere 
equity  by  analogy,  416;  see  Stale  Demands,  and  417. 

Liquidated  damages,  no  relief  against,  409. 

Lis  pendens,  428,  448;  what  constitutes,  428,  448;  rationale  of  the  rule, 
428,  429,  448  ;  from  what  time  it  exists,  429,  448  ;  terminates  with 
the  suit,  429,  449;  does  not  amount  to  notice  of  unrecorded  mort" 
gage,  429,  449. 

Local  actions,  what  are,  249. 
3 


Xviii  INDEX. 

Lost  bond.  398, 399,  -lOO  ;  set  up  in  equity,  398 ;  even  against  surety,  399  ; 
lost  promissory  notes  and  bills,  399;  oilier  lost  instruments,  400  ; 
bill  to  set  up  must  be  sworn  to  if  relief  be  jprayed,  400  ;  aliter  if  it 
be  not,  400. 

Malicious  i>rosecution,  G3:  remedy  for,  C3 ;  see  Conspiracy,  and  (33 ; 
lies  for  demand  of  excessive,  63  ;  or  for  suit  without  any  cause  what- 
ever, and  damajrc  therefrom,  04  :  former  suit  must  be  at  an  end,  64  ; 
so  as  to  indictments,  64  ;  what  must  concur  to  sustain  the  action, 
63,  61 ;  malice  implied  from  want  of  probable  cause,  but  not  e  con- 
tra, 64  ;  wiiat  is  probable  cause  is  a  question  for  the  court,  64  ;  this 
action  lies  for  malicious  attachment,  64  ;  or  search  warrant,  64  ; 
but  not  for  prosecution  by  a  superior  before  a  court  martial,  64  ;  de- 
claration in  this  action,  64  ;  plea,  64  ;  evidence,  64  ;  copy  of  re- 
cord necessary,  64  ;  how  procured,  65  ;  good  evidence  though  pro- 
cured without  order,  65;  onus  probandi  on  the  plaintiff,  65;  what 
he  must  prove  and  ynay  give  in  evidence,  65  ;  def.  may  give  in  evi- 
dence his  own  evidence  on  the  prosecution,  65  ;  what  hetnust  prove 
or  may  give  in  evidence,  65 ;  verdict  is  for  damages,  65. 

Mandamus,  201 ;  its  object  and  function,  201 ;  when  it  lies,  202  ;  proceed- 
ings in,  201,  202. 

Marriage,  agreement  in  consideration  of,  140;  promise  to  marry  not  with- 
in statute  of  frauds,  140. 

Marriage  brokage  bonds,  427. 

Marriage  settlements,  441 ;  moulded  and  reformed  by  articles,  441, 403. 

Marshalling  securities,  492,  493. 

Mayhem,  53  ;  damages  de  incremento,  54. 

Merger  of  simple  contract,  137,  138;  of  equitable  title  in  legal  estate,  395, 
435. 

Mill  cases,  roads,  wills,  Sec.  tried  per  testes,  284. 

Mispleading  cured,  313. 

Mistake,  money  paid  by,  recovered  back,  131. 

Mistakes,  in  names,  dates,  sums,  &c.  cured  by  verdict,  314;  and  by  judg- 
ment upon  nil  dicit,  316  ;  in  judgment  how  amended,  317  ;  even  in 
the  court  of  appeals,  318. 

Mistake,  equitable,  relief  on  the  ground  of,  402;  in  matter  of  law  not  re- 
lieved, 402;  exceptions,  403 ;  see  compromise,  and  402;  mistake 
as  to  fact,  403,  405,  406;  in  conveyances,  403  ;  see  Marriai!;c  Set- 
tlements, and  403:  mistake  of  (pianlity  of  land,  404;  see  Sales  in 
Gross — More  or  J^ess — Deficiency — Contract  of  Hazard,  and  404  ; 
mistakes  in  ri-lation  to  wills  relieved,  406;  mistakes  of  arbitrators, 
406. 

Mosey  directed  to  be  laid  out  in  land,  and  rice  versa,  154  ;  rules  of  equi- 
ty on  this  subject,   l.')o. 

Money  had  and  received,  129;  paid,  laid  out,  Sec.  129,  132  ;  see  Judgment 
Reversed,  and  132;   paid  as  surety,  133. 

More  ok  less,  404. 

Moral  OBLIGATION  supports  express  promise,  137;  no  implied  promise 
from  it,  137. 

Motion,  255  ;  substituted  for  audita  querela,  326:  and  for  error  coram  no- 
bis, 328. 

Mortgage,  goo<I  to  indemnify  against  negotiable  note  and  its  rcneicals,  444. 


Ne  exeat,  4b5;   when  only  allowed,  4S5 ;   how  and  on  what  terms,  486. 

New  trial,  302:   for  whai'c.iiiscs  and  when  allowed,  302,  304,  305,  306; 
at  large — for  misdirection,  .305  ;   verdict  against  evidence,  305;  or 
rendered  through  mistake,  305  ;  rules  for  granting,  306  ;  never 
ed  where  justice  is  done,  307  .;  court  should  not  invade  jury' 


or 
grant- 
s  pro- 


INDEX.  ^IX 

vincc,  307;  nor  decide  on  weight  of  evidence,  307  ;  rarely  allowed 
if  cv.  is  contradictory,  307  ;  nor  when  damages  are  matter  of  senti- 
ment and  opinion,  307;  except  for  flagrant  excess,  307;  allowed 
for  mistake  in  calculation,  307  ;  when  refused,  308;  distinguished 
from  venire  de  novo,  306;  party  obtaining  must  pay  costs,  308;  be- 
fore the  second  trial,  308;  consequences  of  failure,  308;  dismissal 
by  plaintiff  after  award  of  new  trial  should  not  be  allowed,  309; 
what  should  be  done,  309;  new  trial  refused  to  one  where  ano- 
ther is  acquitted,  92;  see  Verdict  set  aside,  and  303,  305;  advanta- 
ges of  new  trials,  303;  ground  for,  how  laid,  304  ;  not  allowed  af- 
ter motion  to  arrest,  305;  when  it  must  be  to  the  same  court,  305; 
refused  in  doubtful  cases,  305  ;  rarely  allowed  to  plaintiff  in  eject- 
ment, 306  ;  allowed  for  excessive  or  inadequate  damages,  306;  for 
discovery  of  new  evidence,  when,  306. 

Nil  digit,  251;  316;  judgment  on,  placed  on  ground  of  judgment  after 
verdict,  316  ;  see  Default,  and  316. 

NoN  ASSUMPSIT,  evidence  under,  160. 

NoN  OBSTANTE  VEREDICTO,  judgment,  269. 

Nonsuit,  251,  299;  judgment  of,  no  bar,  299;  not  even  in  writ  of  right, 
186;  in  assumpsit,  161;  never  compulsory  here,  251;  except  for 
want  of  jurisdiction,  251 ;  when  it  must  be  suffered,  if  at  all,  251, 
299;  judgment  of,  323. 

Notice,  428;  what  amounts  to,  428,  446;  actual  and  constructive,  428, 
440,  449  ;  see  Recording,  and  428,  447 ;  see  Lis  Pendens,  and 
428,448  ;  private  statutes  do  not  constitute,  447  ;  whatever  is  suffi- 
cient to  put  a  party  on  inquiry  is  notice,  447  ;  notice  to  counsel 
or  agent,  447;  suspicion  of  fraud  not  notice,  448;  when  inferred 
from  witnessing  deed,  449  ;  possession  is  notice,  450  ;  see  Purcha- 
chaser  without  notice,  and  450. 

Novel  assignment,  264. 

Nuisance,  194;  to  corporeal  inheritances,  194;  affecting  dwelling,  194; 
or  lands  or  watercourses,  195 ;  or  incorporeal  hereditaments,  195 ; 
remedies  for,  195;  see  Presumption  of  Right,  and  195,  196;  also, 
Book  2,  Index  ;  private  remedy  when  given  for  public  nuisance,  196, 
and  the  note  ;  execution  upon  the  judgment  in  the  action,  342. 

NuL  TiEL  RECORD,  plea  of,  how  to  conclude,  281;  how  tried,  278. 

Obligees,  sued  by  surviving,  273. 

Obligors,  suit  against  survivor,  273;  and  the  representative  of  decedent, 
273;  they  can't  be  joined,  273;  joint  obligors,  how  only  to  be  su- 
ed, 273;  joint  and  several,  how  they  may  be  sued,  273;  see  Joint 
Action,  and  274,  275. 

Office  JUDGMENT,  238,  275;  confirmed,  238,  275;  how  and  when  set 
aside,  238,  239,  275  ;  on  what  terms,  239. 

Off-set,  256;  all  discounts  allowed,  108:  items  of  to  be  filed,  109,  160; 
how  considered,  108;  object  of,  108;  discounts  allowed  up  to  the 
trial,  108;  subject  to  what  rule,  108,  109  ;  what  may  be  set-off,  108, 
109;  how  barred  by  limitation,  109;  when  not  allowed  in  suit  by 
executor,  109  ;  debts  must  be  mutual  and  in  same  right,  109;  so  in 
equity,  109;  so  as  to  partnership  demands,  109,  110;  judgments, 
how  off-set,  110;  off-set  how  pleaded,  110;  off-sets  in  equity,  110; 
a  good  plea  in  assumpsit,  160. 

Old  age,  when  ground  to  vacate  contract,  425. 

Omission  of  words  "  that  he  render,"  cured  in  debt,  98 ;  and  detinue,  315; 
omission  in  verdict  of  price  or  value  cured,  317. 

Oppression,  422. 

Order  of  pleading,  254. 


X%  INDEX. 

Ouster  of  the  freehold,  IGl ;  remedy  for  various  kinds  of,  167 ;  by  en- 
try, 107  ;  by  action,  170. 

Papers,  production  if  compelled,  300. 

Pari  delicto,  l'S'2. 

Parol  evidence,  how  far  admissible  in  bills  for  specific  execution,  463. 

Parties  to  action,  208  ;  in  actions,  ex  contractu,  208  ;  who  should  be 
plaintiffs  in  reference  to  their  interest  as  original  parties  to  the 
contract,  208  ;  number  of  plaintiffs,  210  ;  assignees,  21 1 ;  surviving 
obligees,  211  ;  executors,  &c.,  and  heirs,  212;  husband  and  wife, 
212  ;  parties  defendant,  211 ;  original  parties  to  the  contract,  214  ; 
number  of  defendants,  215  ;  defendants,  not  originally  parties  to  con- 
tract, 216;  surviving  obligor,  217;  executors,  &c.,  218 ;  heirs  and 
devisees,  218;  husband  and  wife,  219. 

In  actions  ex  delicto,  220  ;  plaintiffs  in  reference  to  their  in- 
terest, 220;  number  of,  220;  where  interest  is  transferred,  222; 
death  of  part,  223  ;  death  of  party  injured,  223  ;  marriage,  224  ;  con- 
sequences of  mistake,  225;  defendants  in  tort,  225 ;  original  par- 
ties, 225;  number  of,  226;  assignees  of  the  estate,  228;  death  of 
wrongdoer,  228  ;  husband  and  wife,  229. 

Particeps  cri.minis,  1-32. 

Partners,  142  ;  all  must  join  in  action,  143  ;  all  contracts  of,  are  joint  and 
several,  143  ;  if  one  is  beyond  sea,  the  plaintiff  may  proceed  against 
the  other,  143,  275  ;  see' Joinder. 

Patent,  irregularity  of  proof  of,  not  admissible  at  law,  unless  appearing  on 
its  face,  177;  repeal  of,  188;  effect  of  repeal,  189;  mode  of  pro- 
ceeding, 189. 

Paupers,  suits  of,  32^1,  325. 

Payment,  plea  of,  what  it  admits,  102;  payment  pleaded  generally,  104; 
pleaded  at  an'd  before  the  day,  101,105;  presumption  of,  105 ;  see 
Application  of  Payments,  and  106;   doctrines  on  this  subject,  106. 

Penalties  and  forfeitu.-es  relieved,  407  ;  instances  in  case  of  bonds,  and 
mortgages,  and  forfeiture  for  non-payment  of  rent,  407;  when  re- 
lief granted  for  breach  of  covenant,  407  ;  not  unless  compensation 
can  be  made,  408;  delicate  jurisdiction,  408;  see  Time,  and  407; 
penalty  for  failure  to  pay  punctually,  408;  tenant  when  not  relieved^ 
408,  409;  no  relief  against  legislative  penalties,  409;  see  Liquida- 
ted Damages,  and  409. 

Penalty,  uond  in  a,  how  declaretl  on,  100. 

Permanent  improvements,  compensation  for,  when  and  to  what  extent 
allowed,  411. 

Personal  sEcrurrY,  51. 

Physician  in  England  can  mnintain  no  action  for  his  fees,  49. 

PLEADiNfJs,  their  object  and  function,  243;  sec  Declaration,  and  244;  or- 
der of  pleading,  25  J  ;   various  rules  as  to,  253,  264  ;  see  Issue.' 

Pleas,  defendant  may  plead  several,  260;  or  plead  and  demur,  260,  268; 
dcfen.  has  judgment  where  any  plea  is  found  for  him,  260,  268- 
plamtiff  cannot  demur  and  reply,  26(h  sec  Certainty,  and  260261  •' 
various  rules  as  to  pleading,  253  to  261 ;  what  a  plea  is  taken  to  con- 
fess, 262;  how  to  conclude  263;  no  special  plea  of  what  amounts 
to  general  issue,  263  ;  sec  Dilatory  Picas,  and  253  ;  plea  to  the  ac- 
tion, 255  ;  see  Confession  and  Cognovit,  and  25^3  ;  see  Special  Pleas, 
beneral  Issue. 

Pleas  in  assumpsit,  151  ;  must  answer  the  wlioir-,  151,256-  sec  Defence  ■ 
matter  of  discharge  must  be  pleaded,  151  ;  accord  and  sat.— pay- 
ment—payment  of  lesser  sum  brfbre  the  dav— and  mer<rrr  152- 
Sec  Limitations,  and  152,  sec  Bankruptcy,  and  157;  Tender,  and 


INDEX.  XXI 

158;  Infancy,  and  158;  Use  and  Occupation,  and  159;  Judgment, 
and  159;  Attachment,  and  159;  plea  of  release,  159;  of  arbitr. 
and  award,  160 ;  of  alienage,  160 ;  general  issue,  160. 

Pleas  in  debts  on  bond,  103;  delivery  as  escrow,  103;  nil  debet,  bad  to 
debt  on  specialty,  103;  aliter,  as  to  debt  on  simple  contract  or  for 
rent,  103;  or  on  foreign  judgment,  104;  non  est  factum,  103;  lu- 
nacy— coverture — infancy — escrow — gambling — usury,  &.C.,  how 
pleaded,  104;  accord,  104;  tender,  104;  payment,  104;  what  ad- 
mitted by  plea  of  payment,  102 ;  payment  generally — and  payment 
at  and  before  the  day,  104,  105;  defence  and  plea  as  to  part,  and 
cognovit  for  the  rest,  105,  262  ;  plea  only  as  to  part  is  bad  where  de- 
fence is  as  to  the  whole,  105,  262;  defence  as  to  part  only,  and  plea 
as  to  so  much,  how  to  be  treated  by  plaintiff,  105,  262  ;  consequence 
of  demurring  to  such  plea,  105,  262;  see  Bill  of  Particulars,  and 
105;  Presumption  of  payment,  and  105;  Solvit  ad  diem,  and  105; 
Attachment,  and  107;  Non  damnificaius,  and  107;  Rent,  and  108; 
Bankruptcy,  and  108;  Off-set,  and  10'8;  Heir,  and  111;  Executor, 
and  114;  Assignee,  and  115;  Declaration,  and  98;  Pleading,  243,  &c. 

Plea,  its  object  and  function,  245;  conditions  and  qualities  of,  258;  see 
Special  Pleas,  and  258  ;  see  Duplicity,  and  258. 

Plene  administravit,  when  to  be  pleaded  generally,  115  ;  when  and  liow 
specially,  115;  how  to  plead  debts  of  superior  dignity  and  judgment 
confessed  for,  115;  replication  per /rauc/em,  115. 

Pound,  what,  12  ;  common,  special,  covert,  and  overt,  12. 

Power  of  appointment,  distinguished  from  trust,  438,  439 ;  equity  will 
aid  if  power  is  imperative,  but  not  if  merely  discretional,  439;  de- 
sertion where  object  is  determinate,  not  considered  as  mere  power, 
440. 

Practice  in  equity,  see  Bill,  and  496;  must  bring  all  necessary  parties 
before  the  court,  496;  exceptions,  496;  who  must  join,  496;  if 
one  refuses,  how  to  proceed,  496 ;  bill  dismissed  if  no  jurisdiction 
appears,  496;  when  to  be  filed,  497  ;  subpcena,  497;  proceeding 
when  defendant  does  not  appear,  497 ;  compulsory  process,  498 ; 
against  a  corporation,  498  ;  against  absent  defendant,  498  ;  defence 
how  to  be  made,  498;  demurrer,  498;  plea,  499;  answer,  499; 
form  of,  499,  505  ;  exceptions  to,  499;  supplemental  bill,  499;  bill 
of  interpleader,  499;  matter  confessed,  plaintiff  takes'decree,'499i 
if  not  admitted  must  be  replied  to,  499,  503;  depositions,  proof  by, 
500;  how  taken,  500;  within  what  time,  500  ;  testimony  perpetu- 
ated, 500;  cross  causes,  500;  decree,  interlocutory  or  final,  501 ; 
feigned  issue,  561  ;  accounts,  501  ;  opinion  of  general  court  asked, 
501  ;  bill  taken  pro  confesso,  498  ;  against  one  no  evidence  against 
another,  498;  and  if  the  other  answers  and  defeats  the  plaintiff  as 
to  himself  he  defeats  him  as  to  both,  498;  deposition  of  delendant 
taken  by  plaintiff,  and  vice  versa,  when,  503,  504;  costs  in  equity, 
504;  in  cases  of  injunction,  504;  in  the  case  of  heir,  504  ;  decree, 
how  enforced,  504;  rehearing,  505 ;  bill  of  review,  505;  appeals, 
505. 

Presu:«ption  of  right  to  easement,  195,  196;  see  Book  2. 

Presumption  from  length  of  time,  401,  413  ;  against  stale  demands,  417. 

Presumption  of  payment ;  see  SoWit  ad  diem,  and  105;  differ  from  sta- 
tutory bar,  105;  and  may  be  rebutted,  105;  how  rebutted  by  pay- 
ment of  interest,  106  ;  endorsement  of  such  payment,  when  good 
evidence,  106. 

Presumption,  violent,  probable,  light,  and  rash,  291 ,292. 

Prison  rules,  351,  352. 


Xxii  INDEX. 

Proceedin'gs  in  suits,  229  ;  prosecution  of  suit,  272. 

Process  subsequcut  to  the  capias,  23(5. 

Prodi-ctiox  of  papers  compelled,  300. 

Profert  of  deed,  101,  2G8 ;  its  object,  101 ;  of  letters  testamentary,  250  ; 
profert  when  dispensed  with,  101  ;  how  set  forth,  101  ;  excuse  for 
want  of,  liow  set  out,  102. 

Prohibition,  object  and  function  of  the  writ  of,  203;  when  appropriate, 
203;  mode  of  proceeding,  203  ,  sec  Consultation,  and  204. 

Promise  to  pay  debt  of  another,  139,  1 10  ;  whether  consideration  is  neces- 
sary, 140  ;  and  must  be  inserted  in  the  agreement,  140. 

Promises,  what  suflicient  to  maintain  action,  141 ;  general  declarations  of 
intention  not  sufficient,  141. 

Proof,  positive  and  circumstantial,  291. 

Protestation,  2G5. 

Puis  darrein  continuance,  pica  of,  271  ;  hazard  of  pleading,  271. 

Purchase  money,  payment  of,  when  restrained,  473,  474  :  when  not,  473, 
474  ;  actual  eviction  or  superior  title  must  be  shewn,  473  ;  threat  un- 
der claim  of  title  has  been  deemed  sufficient,  474. 

Purchase  money,  application  of,  when  is  purchaser  bound  to  see  to,  451 ; 
when  not,  431 ;  course  to  be  pursued  by  him,  451. 

Purchaser  cannot  be  compelled  to  take  defective  title,  465;  see  Vendee. 

Purchaser  with  notice  is  a  trustee,  446;  personally  liable  if  he  sells  to 
purchaser  without  notice,  451. 

Purchaser  without  notice  protected,  450;  must  be  complete  purchaser, 
450  ;  why,  450  ;  how  he  must  plead  or  answer,  453  ;  purchaser  with 
notice  from  a  purchaser  without,  protected,  450  ;  purchaser  for  value 
without  notice  may  plead  that  in  bar  of  discovery  of  title,  432. 

Quantum  meruit,  129,  133,  146,  149,  150. 

Quantum  valebat,  129,  146. 

Quia  timit,  481,  485;  bills  q.  t.,  when  appropriate,  481,  485;  sec  Surety, 
and  481,  482;  see  Testimony,  bills  to  perpetuate,  and  483  ;  see  Ne 
Exeat,  and  485. 

Quo   WARRANTO,   201. 

QuoD  CUM,  54,  263,315. 

Kecai'tion,  right  of,  2;   how  to  be  exercised,  3. 

Recital,  trespass  laid  by  way  of  bad,  192,  315  ;  but  cured  by  verdict,  192, 
315. 

Record,  271,  278  ;  how  authenticated,  281,  282,  283  ;  sec  Nul  ticl  record, 
and  281  ;  tried  only  by  itself,  278  ;  nothing  to  be  averred  against  it, 
45;  mistakes,  how  amended,  and  when,  45;  existence  of,  how  tri- 
ed, 45;  plea  to  debt  on  domestic  judgment,  278 ;  on  foreign  judg- 
ment, 278. 

Recording,  when  notice,  428,  4  17. 

Recovery,  iormimi,  good  bar,  159. 

Re-entry,  right  of,  -3;   how  to  be  exercised,  4. 

Reference  to  arbitration,  see  Arbilramenl — what  may  be  referred,  30; 
questions  as  to  realty  may,  30;  causes  involving  immorality  or  in- 
decency cannot,  3(),  31. 

REHEAUINf;,  505. 

Rejoinder,  261. 

Relator  should  be  named  in  the  doclaration,  ?)9. 

Remedies,  specific,  93  ;  case,  remedy  by  action  on  the,  93. 

Remitter,  rnncdy  of,  43. 

Rent,  H«;c  TJj.f/rcjrvcs  ;  reinodios  for,  5,  6,  15  ;  to  whom  15;  lessor  who  as- 
signs loses  part  of  his  remedies,  15;  remedies  of  ex.  and  adm.  by 
debt,  distress,  or  covenant,  15;  or  attachment,  16;  remedy  of  heirs, 


fi^M  INDEX.  XXIII 

16;  how  one  coparcener  should  avow,  16;  husband's  remedy,  16; 
remedy  of  assignees,  17;  of  joint-tenants  and  tenants  in  common, 
17;  remedy  aga'mst  ex.  and  adm.  17;  against  lessor  after  assign- 
ment, 18;  against  assignee  of  lease,  18;  he  is  liable  only  while  he 
holds,  18;  distinction  between  assignee  and  derivative  lessee,  19; 
remedy  against  heirs,  19;  covenant,  when  it  lies,  19;  or  debt,  19; 
or  assumpsit,  20;  assumpsit  for  use  and  occupation,  20;  remedy 
by  attachment,  20;  by  re-entry,  21;  demand  in  this  case  essential, 
21  ;  alitor  as  to  distress,  21 ;  parties  may  by  contract  dispense  with 
demand,  21;  time  of  demand,  22;  amount,  22;  place,  22;  after 
demand  ejectment  lies,  22 ;  waiver  of  forfeiture  for  non-payment, 
22 ;  leases,  what  avoided  ipso  facto,  22 ;  what  not,  22  ;  forfeiture 
for  non-payment  relieved  in  equity,  23  ;  fifa  levied  on  goods  on  the 
premises,  rent  must  first  be  paid,  23  ;  sheriff,  how  responsible,  23  ; 
rent-seek,  remedy  for  in  equity,  24 ;  interest  on  rent,  how  allowed 
by  statute,  6,  7  ;  recoverable  in  various  actions,  6,  7 ;  not  to  be  dis- 
trained for,  6  ;  See  Distress ;  when  distress  is  barred  by  stai.  of  lim. 
7;  when  rent  is  apportioned,  7 ;  how,  7,  8 ;  pleas  to  debt  for  rent  108; 
remedy  for  rents  in  equity,  400. 

Rents  and  profits^  how  far  back  allowed  in  equity,  see  Account,  and  410  ; 
sale  decreed  when  they  will  not  keep  down  interest,  457. 

Replevin,  action  of,  76;  its  object  and  eifect,  76;  when  it  lies,  76,  77; 
how  to  be  sued  out,  77  ;  on  what  terms,  77 ;  writ  de  proprietate  pro 
banda,  77;  avowry,  78  ;  cognizance,  78  ;  judgment  for  plaintift',  78  ; 
or  defendant,  78  ;  how  where  the  action  is  brought  by  a  stranger, 
78  ;  judgment  in  case  of  nonsuit,  78  ;  suit  on  replevin  bond,  78 ; 
dec.  in  replevin,  78  ;  pleas — or  avowry,  79  ;  strictness  in  avowry,  79  ; 
pleas  to  avowry,  79;  who  may  join  in  replevin,  79  ;  or  in  distrain- 
ing, 79;  remedies  for  improj)er  distress,  79;  see  Distress  ;  action 
of  replevin  to  be  promptly  tried,  79. 

Replevy  bond  for  rent,  12;  how  disposed  of,  13  ;  remedy  on,  13;  though 
faulty,  yet  good  as  common  law  bond,  13;  no  motion  on,  against 
executors,  13. 

Replevy  laws,  371. 

Repleader,  318,  319,  320;  when  necessary,  318;  refused  to  him  who 
commits  the  first  fault,  318  ;  not  allowed  if  result  must  be  the  same, 
318;  may  be  awarded  up  to  the  declaration,  inclusive,  319;  rules 
as  to  repleaders,  320,  Chitty's  note. 

Rescission  of  contracts,  465,  425 ;  never  in  part,  425. 

Respondeat  ouster,  judgment  of,  321. 

Retainer,  remedy  of,  42  ;  not  extended  to  executor  de  son  tort,  43  ;  may 
be  pleaded  or  given  in  evidence,  115. 

Reversionary  interests.,  sales  of,  426. 

Review,  bill  of,  505. 

Revisor,  bill  of,  when  allowed,  479. 

Rule  book,  form  of,  277. 

Rules,  275  ;  proceeding  at  the,  272,  Stc. 

Sale  by  court  of  equity,  see  Rents  and  Profits,  and  457. 

Sale,  contract  of,  134;  warranty  of  title  on,  134;  printed  conditions  of, 
135;  frauds  on  sale,  135;  risk  of  delivery,  135;  rescission  of  for 
good  cause  in  reasonable  time,  135. 

Sale  AT  AUCTION,  when  complete,  135;  puffers  at,  1-35;  credit  on  sales, 
135 ;  resale  at  vendee's  risk,  135. 

Sale  by  the  acre,  404  ;  in  gross,  404. 

Sale  by  sheriff,  369. 

SALEf3  or  LAND,  contract  for,  must  be  in  writing,  &,c.,  13S. 


XXIV  INDEX. 

Scire  facias,  254 ;  against  bail,  241,  359;  quashed  if  not  made  properly 
returnable,  241 ;  how  executed,  241,  note  ;  how  returned,  241  ;  sur- 
render of  principal,  when  to  be  made,  241;  scire  facias  where  par- 
ty marries  after  judgment,  341. 

Scire  facias  to  recover  judgments,  340  ;  limitation  to,  376,  377;  sugges- 
tion of  death  of  one  of  several,  the  cause  proceeds  without,  sci.  fa., 
340;  does  not  lie  against  heir  until  nihil  returned  against  executor, 
340;  in  detinue,  81,  in  note;  against  \)urcha.sei  pendente  lite,  82; 
how  it  issues,  if  plaintiff  chooses  to  proceed  against  deceased  de- 
fendant, 341  ;  not  necessary  if  there  has  been  a  levy,  341. 

Seduction  of  wife,  see  Crim.Con. ;  of  daughter,  73;  remedy  for  either  tres- 
pass or  case,  73,  94;  when  only  sustainable  if  daughter  be  adult, 
73;  new  trials  in  case  of,  rare,  74;  daughter,  a  good  witness,  74; 
what  may  be  shewn  in  aggravation  or  mitigation,  74. 

Seizin  explained,  and  the  diiferent  kinds  of,  illustrated,  181. 

Servant,  action  for  retaining  hired  servant,  74;  scienter  material,  74; 
aliter  as  to  slaves,  74  ;  penalties  for  harboring,  75  ;  battery  of,  reme- 
dy for,  75  ;  servant  and  master  may  both  sue,  75. 

Set-off,  see  Off-set. 

SuERiFF,  action  against  for  failure  to  take  bail,  238 ;  his  duties  under  exe- 
cution, 3G9  ;  how  to  i)rocecd  if  the  property  is  claimed  by  a  stranger, 
369;  bound  to  sell  if  indemnified,  370:  liable  for  false  return,  370 ; 
his  duty  when  money  is  made,  370  ;  purchasing  at  his  own  sale,  how 
far  is  the  sale  good,  459. 

Ship  masters  and  owners,  141  ;  when  liable  for  general  charges — for  re- 
pairs— for  wages,  141,  142. 

Signing,  what  sufficient  under  the  statute  of  frauds,  141,  463;  auctioneers 
signing  purchaser's  name  sufficient,  463. 

Similiter,  265,  313. 

Slander,  58  ;  what  writ  actionable  in  Vir.,  59;  baron  and  feme  only  can 
join  in  action  or  be  joined,  59  ;  words  how  construed,  59  ;  must  be 
charged  not  by  way  of  recital,  59;  with  proper  iimendos  and  aver- 
ments, 59  ;  pleas,  60  ;  justification,  60  ;  and  excuse  for,  60,  in  note  ; 
evidence  in  this  action,  61  ;  lor  defendant,  61  ;  truth  of  words  not 
evidence  under  not  guilty,  62;  nor  probable  grounds  of  suspicion, 
62  ;  damages  and  costs,  62. 

Slaves,  injunction  to  sale  of",  463. 

Solvit  ad  diem,  plea  of, — presumption  good  defence  under,  105. 

Si'EciAL  asslmi'sit,  130;  sp.  contract  must  be  declared  on,  144  ;  and  tru- 
ly stated,  149;  and  jjroved  as  stated,  149  ;  on  failure,  whether  plain- 
tiff can  resort  to  the  general  counts,  149,  150. 

Special  case,  300. 

Special  pleas,  257,  258;   how  concluded,  258. 

SpEciFn;  performance,  460;  not  decreed  in  case  of  gross  inadequacy, 
426;  foundation  of  this  jurisdiction  of  equity,  460;  effect  of  con- 
tract on  the  rights  of  property  in  equity,  461  ;  death  of  parties  when 
only  it  affects  the  contract,  461  ;  how  enforced,  461 ;  in  what  cases 
decreed,  461 ;  in  reference  to  the  parties,  461 ;  infants,  lunatics,  and 
femes  covert,  462;  licirs,  462  ;  in  reference  to  the  subject  matter  of 
the  contract,  462  ;  will  not  lie  for  chattels,  462 ;  exception  as  to 
blaves,  463  ;  in  reference  to  the  evidence  of  the  contract,  463 ;  see 
Slat,  of  Frauds,  and  463  ;  of  the  character  of  the  contract,  464  ; 
must  be  clear,  certain,  fair,  not  illegal,  mutual,  on  valuable  consider- 
ation, and  not  grosf^ly  niK!(|iinl,  464  ;  never  decreed  for  volunteer — 
nor  if  grossly  un<<pKil.  or  unreasonable,  464. 


tNDEX.  XXV 

Specific  performance,  never  decreed  to  the  backward,  464 ;  nor  a  party 
unable  to  perform,  465 ;  nor  where  the  title  is  defective,  465 ;  or  tho 
purchaser  cannot  get  what  he  contracted  for,  465  ;  when  variance 
is  held  immaterial,  465;  yet  vendor  may  be  compelled  to  convey  such 
as  he  has,  466;  even  if  afterwards  obtained,  466;  decree  for  new- 
deed  when  first  deed  is  defective,  or  runs  out  of  date,  466;  in  con- 
sidering validity  of  title,  moral  certainty  sometimes  suffices,  467. 

Stated  demand,  413,  417. 

Stale  ACCOUNT,  129,  412,  418;  mistake  in  relieved,  412;  but  amount 
must  be  surcharged  and  falsified,  412,  418;  onus  on  the  party  sur- 
charging, 412,  418  ;  defendant  may  plead  stated  account,  412;  and 
then  the  plaintiff  may  surcharge  and  falsify,  412;  stated  account 
should  not  be  referred  to  a  master  without  evidence  of  error,  or  er- 
ror apparent,  412. 

Statute  of  frauds,  1-38,  1-39,  463  ;  see  Agreement  and  Signing,  and  140, 
141,  463;  effect  of  part  execution,  463. 

Sterling  jioney,  see  Declaration  in  Debt,  and  99,  100. 

Stewards,  must  keep  regular  accounts,  417;  jurisdiction  in  equity  against 
them,  417;  confounding  their  goods  or  money  with  principal's,  hovf 
dealt  with,  417; 

Stipulated  damages,  322. 

Submission,  who  may  submit,  29;  who  not,  29;  husband  may,  30;  and 
executor,  30 ;  but  he  may  thereby  make  himself  liable,  .30  ;  sub.  how 
made,  31 ;  may  be  verbal,  31 ;  actual  submission  only  can  be  enfor- 
ed,  31  ;  and  even  actual  sub.  is  no  bar  to  action,  31  ;  though  party 
is  liable  for  breach  of  submission  bond,  '31 ;  see  Legacy,  and  31 ; 
statute — submissions  under,  .31  ;  it  does  not  extend  to  pending  suits, 
31;  awards  under,  must  lie  two  terms,  .31  ;  it  must  be  agreed  to  make 
sub.  a  rule  of  court,  .31  ;  sub.  as  revoked  by  marriage,  death,  or  deed, 
before  award,  31 ;  yet  party  is  liable  on  his  bond,  32;  sub.  should 
fix  time  for  award,  32 ;  matters  not  decided  may  be  subject  of  fu- 
ture action,  32;  sub.  may  be  altered  by  the  parties,  33. 

Substitution,  492;  marshalling  securities,  492;  subst.  as  between  surety 
and  creditor,  144;  as  between  surety  and  obligor,  or  his  representa- 
tives, 493 ;  as  between  sureties,  494 ;  as  between  assignees  and  as- 
signors, 494 ;  when  does  the  sur.  rank  as  specialty  ere.,  493  ;  and  en- 
titled to  preferable  right  to  payment,  493 ;  or  to  charge  the  heir,  494. 

SUGGESTIO  FALa^I,  421. 

Suits,  redress  by,  44  ;  proceedings  in,  229  ;  against  gov.,  judges,  &c.  24L 

Summons  and  severance,  3.31. 

Summary  remedies,  by  motion,  242; 

Supersedeas,  332-4  ;  nature  of  it,  334  ;  when  it  lies,  .334 ;  effect  of  it,  3.32; 
on  d.  bond,  332  ;  confined  to  errors  on  the  face  of  the  record,  334. 

SuppREssio  vERi,  422;  what  amounts  to,  422. 

Surcharge,  418. 

Surety,  when  absolved  by  new  contract  with,  or  credit  given  to  the  prin- 
cipal, 482  :  basis  of  this  doctrine,  483  :  creditor  must  have  tied  his 
hands,  48-3. 

Surprise  on  trial  at  law,  relief  in  equity  in  cases  of,  475. 

Tenant,  when  not  relieved  in  equity,  408,  409. 

Testimony,  bill  to  perpetuate,  483. 

Time,  sometimes  of  the  essence  of  contract,  407. 

Title,  what  constitutes  complete,  168. 

Trial,  278  :  sev.  species  of,  278 :  by  rec,  278 :  by  inspec,  281 :  in  case  of 
death  suggested,  282:  by  certificate,  282,  283;  by  witnesses,  284  i 
see  Mill  Cases,  &c.  and  284  :  by  wager  of  law,  284:  by  jury,  284^ 
4 


XXVI  INDEX. 

Trespass  de  bonis  asportatis,  90  :  judgment  for  plaintiff  changes  pi«- 
perty  in  the  goods,  90  :  ownership  and  right  of  possession  sufficient 
to  maintain  the  action,  90  :  therefore  executors  may  maintain  it,  90  : 
and  letratees  after  assent,  90:  does  not  lie  where  right  is  reversion- 
ary, 91:  case  is  then  the  remedy,  91 :  lies  not  for  things  in  which 
there  can  be  no  property,  91  :  lies  not  against  defendant  who  came 
lawfully  into  possession,  91:  exceptions — ^joint-tenants  and  tres- 
passers ab  initio,  91:  dec.  in  trespass,  91 :  must  lay  property  or 
possession  in  plaintiff,  92  :  pleas — general  issue,  former  recoverj?, 
accord,  release,  and  limitations,  9-2:  evidence,  92  :  verdict,  92: 
jury  cannot  sever  in  damages,  92 :  but  one  or  more  may  be  acquit- 
ted :  see  New  Trial :  costs,  93. 

Trespass  on  the  case,  53:  distinguished  from  trespass  vi  et  armis,  53  :  il- 
lustrations of  the  distinctions  between  trespass  and  case,  57,  89 : 
case  the  universal  remedy  for  injuries  without  force,  57:  there  must 
be  damnum  et  injuria,  93  :  injuries  for  which  it  lies,  94 :  by  defendant 
or  his  servants  or  cattle,  94. 

Trespass  for  jnesne  profits,  178  :  limitations  to  recovery,  178. 

Trespass  quare  clausum,  190  :  what  amounts  to,  190  :  what  aggravates, 
191,  note  :  property  necessary  to  maintain  trespass  q.  c.  191 :  and 
possession,  191  :  guardian  in  possession  must  sue,  191  :  tr.  for  da- 
mage by  cattle,  191  :  when  action  must  be  brought,  192:  declara- 
tion, 192 :  see  Recital  and  Quod  cum,  and  192 :  when  justifiable, 
192;  defences  to,  193  :  may  try  title  to  land,  193:  evidence  of  title 
in  def.  good  under  general  issue,  193  :  verdict,  damages,  costs,  193  : 
what  tr.  deemed  wilful  and  malicious,  193. 

Trespass /or  injury  to  personally,  89:  when  the  action  should  be  case,  53, 
57,  69 :  lor  wrongs  by  def.  servants,  89  :  or  his  dogs  or  other  ani- 
mals if  there  be  a  scienter  of  the  mischievous  habit,  89. 

Trover,  84  :  for  what  and  when  it  lies,  84  :  the  conversion  is  the  wrong, 
81  :  demand  and  refusal,  when  evidence  of  conversion,  84  :  when 
not,  86,  89 ;  why  substituted  for  detinue,  84  :  damages  only  recov- 
ered, 85  :  distinguished  from  tres.  de  bon.  aspor.  and  from  case,  85: 
differs  in  principle  from  detinue,  85:  loss  by  death  or  destruction  of 
property  after  conversion,  falls  on  def.,  65  :  his  sale  pendente  lite,  va- 
lid, 85:  judgment  for  pi.  vests  property  in  def.  when  and  when  not, 
85:  in  this  action  may  be  tried  validity  of  sales  — title  to  property 
levied  on — questions  of  lien  and  stoppage,  85,  86;  see  Lien,  and 
86:  for  what  property  trover  lies,  66:  plaintiff's  right  of  property 
and  of  immediate  possession,  87  :  when  and  against  whom  may 
bailee  maintain  trover,  67  :  joint-tenants  and  tenants  in  common 
join  in,  87:  see  Abatement,  and  87,  and  151:  husband  and  wife, 
and  67:  joint-tenants,  and  87:  dcclar.  in  trover,  68:  conversion 
the  gist,  68  :  how  declare  for  as  against  husband  and  wife,  68:  pleas 
— general  issue — release — limitations — former  recovery — right  to  re- 
tain, 66  :  limitation  runs  from  conversion,  88  :  evidence,  68  :  finding 
not  traversable,  68:  evidence  of  conversion,  89:  defence,  89:  mea- 
sure of  damages,  69  :  where  value  is  liaudiilently  concealed,  89  :  de- 
livery of  goods  in  discharge,  69 :  jurisdiction,  where  value  is  less 
than  $20,  69. 

Trusts,  435  :  follows  legal  estate,  435  ;  and  merges  in  it,  435:  when  not, 
436:  c.  q.  t.  the  real  owner  of  the  estate,  436 :  how  estate  passes 
and  is  enjoyed,  436:  subject  to  dower,  curtesy,  and  debts,  436: 
power  of  trustee,  436:  cannot  prejudice  c.  q.  t.,  436:  except  by 
sale  to  purchaser  without  notice  for  val.  consideration,  4.37:  eq. 
jurisdiction,  in  all  cases  of,  437  :  what  constitutes  a  trust,  437  :  dis- 
Ijnguishcd  from  common  law  cases  of  confidence  and  trust,  436; 


INDEX.  XXVIl 

•trusts  are  express  or  implied,  438:  express,  438  :  what  essential  to, 
438:  ceases  when  its  purposes  are  fulfilled,  438:  what  words  cre- 
ate, 438:  distinguished  from  naked  power,  438:  and  differently 
construed,  438:  reason  of  this,  439,  440:  never  fails  for  want  of 
trustee,  438:  see  Index,  Book  2,  recommendatory  bequests:  trust 
for  payment  of  debts,  442:  when  void,  442:  acceptance  of  when 
sufficient,  442 :  who  excluded  from,  442 :  trust  by  will  for  payment 
of  debts,  444  :  implied  trust,  445  :  resulting,  445  :  various  instances 
of,  445,  446  :  see  Purchaser  with  notice,  and  446. 

Trustee,  no  act  of  can  prejudice  c.  q.  t.,436,  457:  exception,  437,  457: 
see  Application  of  purchase  money,  and  451,  452:  duties  and  pow- 
ers of,  457  :  remedies  of  c.  q.  t.,  457 :  power  to  convert  the  estate, 
457:  may  do  without  suit  what  he  is  compellable  to  do,  457  :  must 
comply  with  the  deed,  458 :  effect  of  violation  of  the  terms  of,  at 
law  and  in  equity,  458 :  trust  never  fails  for  want  of  trustee,  458 
or  for  his  refusal  to  act,  458:  purchase  by  trustee  from  c.  q.  t.,  458 
after  he  is  SMi  jwrts,  459 :  purchase  by,  under  his  own  sale,  459 
rules  of  equity  as  to  such  purchase,  459,  460  :  effect  of  acquiescence, 
460  :  remedy  of  c.  q.  t.  460. 

Umpire,  how  appointed,  28,  32 :  may  be  appointed  before  the  arbitrators 
have  heard  the  case,  32 :  exception,  32. 

Undue  influence,  423. 

Underhand  agreements,  427. 

Use  and  occupation,  136:  see  Rent,  and  20  :  nil  habuit  not  a  good  plea 
to  action  for,  159. 

Usury,  surety  paying  usurious  bond  without  collusion  may  compel  con- 
tribution, 490. 

Variance,  in  name,  sum,  or  date,  99,  101,  102:  see  Declaration  in  Debt, 
and  101,  272 :  variance  between  declaration  and  writ,  cured  after 
verdict,  313:  or  nil  dicit,  316:  variance  fatal  on  oyer  and  demurrer, 
267:  matter  of  substance,  267. 

Vendee,  considered  in  equity  the  owner  before  conveyance,  461 :  liable  for 
interest,  467 :  see  Purchaser  entitled  to  profits,  467. 

Venditiona  exponas,  370:  seeDistringasNuper  Vicecomitem,  and370. 

Venire  de  novo,  when  awarded,  308 :  differs  from  new  trial,  308  :  award- 
ed if  verdict  does  not  answer  all  the  issues,  314,  317. 

Venue,  how  changed,  309:  from  one  circuit  to  another,  309. 

Venue,  98,  248;  origin  of,  248:  where  laid,  249:  how  laid  in  debt,  99: 
when  with  a  videlicit,  99  :  in  actions  in  courts  of  limited  jurisdiction, 
99  :  omission  cured  after  verdict,  249. 

Verdict,  300:  public  and  privy,  300 :  special.  300  :  for  what  causes  set 
aside,  299,  303:  mistake  of  jury,  303,  305:  how  to  be  found  in  va- 
rious cases,  see  the  Various  Actions,  and  117  :  how  found  on  plene 
administravit  p]eaded,  118,  119:  see  Costs,  and  118:  how  found  on 
plea  of  payment,  before  notice  of  assignment,  120  :  cures  defects 
in  many  cases  independent  of  the  statute,  310. 

Vendor's  lien,  453  :  respects  realty,  453 :  principles  in  relation  to  this 
lien,  454:  clearly  exists  where  title  is  retained  though  security  be 
taken,  454 :  exception,  454 :  exists  if  conveyance  be  made  provid- 
ed no  security  is  taken,  454  :  but  will  be  lost  as  against  purchaser 
for  value  without  notice,  454 :  is  waived  by  taking  security,  454  : 
but  not  by  bond  without  surety,  454 :  taking  mortgage  is  waiver  of 
general  lien,  454  :  unless  it  loses  its  validity  for  want  of  being  re- 
corded, 454:  vendee  with  notice,  personally  liable  if  he  sells  to 
purchaser  without  notice,  454  :  the  lien  is  said  not  to  extend  to  third 
persons,  454 :  yet  surety  may  have  advantage  of  it,  454. 

Void  writ,  see  False  Imprisonment, 


XXviil  INDEX. 

Void  authoritv,  money  paid  under  recovered  back,  132:  what  is  not  void 
authority,  132. 

Wager  of  law,  284. 

Wagering  contracts,  1.32. 

Wages,  seaman's,  freight  the  mother  of,  142:  when  no  wages,  142:  when 
forfeited,  142. 

Wages,  servants,  see  Book  1. 

Warranty  of  title  impHed  on  sale,  134:  reclamation  when  title  is  de- 
fective, 134. 

Waste,  19G :  who  may  sue  for,  197:  tenant  in  fee  never  liable  for,  197: 
what  writ  tenant  for  life  in  remainder  may  have,  107 :  who  alone 
can  maintain  the  writ  of  waste,  198:  redress  for  waste,  198;  see 
Eslropement,  and  198:  remedy  in  equity,  198:  writ  of  waste,  its 
character  and  the  mode  of  proceeding  and  judgment  thereon,  198: 
see  Injunction,  and  469:  meliorating  waste,  470. 

Wife,  battery  of — remedy  for,  73:  action  joint,  when  and  why,  73,  see  <S'e- 
duclion  and  Crim.  Con.  :  wife  may  be  taken  in  execution,  when,  87, 
see  Husband:  trover  may  lie  against  wife  with  her  husband,  but  not 
detinue,  88,  290. 

Witnesses,  joint  trespassers  if  sued  separately,  are  good  witnesses  for  each 
other,  92  :  infamous,  interested,  competent,  credible,  290:  not  com- 
pellable to  prove  their  own  infamy,  29. 

Wounding,  injury,  by,  53:  see  Mayhem. 

Writ  of  error,  see  Error. 

Writ  original,  229:  what  first  process  here,  231 :  form  of  it,  232:  sec 
Jurisdiction,  and  231:  analysis  of  the  first  process,  232:  proceed- 
ings under  it,  233:  officer's  duty,  233:  see  Bail,  and  233:  must  be 
endorsed,  233  :  officer's  duty  thereupon,  2-35:  when  returnable,  2-35: 
when  to  be  executed,  235  :  oyer  of,  when  and  for  what  prayed,  250: 
when  refused,  250  :  when  and  when  not  part  of  the  record,  250, 
251,  .314  :  always  so  to  amend  by,  314  :  irregularities,  how  correct- 
ed, 251,  note:  part  of  the  record  of  necessity  where  there  is  judg- 
ment by  default  for  tcant  of  appearance,  319. 

Writ  of  enquiry,  228,  321 :  wlica  is  a  reference  to  an  accountant  sub- 
stituted for  it,  322. 

Writ  of  error,  see  Error. 

Writ  of  rumit,  178:  is  a  local  action,  160,  249:  lies  only  of  an  estate  in 
fee,  179:  against  tenant  of  the  freehold  at  least,  179:  forms  of  sim- 
plified, 175:  plea  of  non-tenure  and  judgment  thereon,  and  effect 
of  it,  180:  and  prayer  by  tenant  for  life,  180:  form  of  writ  and 
count,  180:  analysis  of  the  count,  180,  181 :  demandant  must  shew 
seizin,  181 :  patent  gives  seizin — so,  also,  a  bargain  and  sale,  181 : 
form  of  plea,  182:  and  replication,  182:  mise  what,  182:  tenant 
may  plead  other  matters,  182  :  matter  of  abatement  not  evidence  on 
the  mise  joined,  182:  plea  in  abatement,  essoigns,  views,  and  vouch- 
ors, 183:  non-tenure  of  the  parcel,  abates  only  for  so  much,  183: 
pleadings  must  be  in  writing,  183,  314:  plea  should  offer  full  de- 
fence, 183  :  evidence,  183,  181,  185  :  tenant  has  aflirmative  in  issue, 
181 :  devisee  may  maintain,  181  :  defence  by  proving  title  in  third 
person,  181,  185:  statute  of  limitations,  185  :  no  saving  as  to  writs  of 
rilht  until  the  late  act,  185:  time  allowed  infants,  8cc.  to  bring  new 
action,  185:  special  verdict  and  case  agreed  in,  185  :  damages,  186: 
judgment,  form  and  eflcct  of,  16G:  in  case  of  non-suit,  186:  exe- 
cution, 186:  proceedings  in  case  of  default,  186. 

Wrongful  detainer,  169. 

Wrosc.s,  private,  how  redressed,  1  :  by  act  of  party  grieved,  2;  by  joint  act 
of  parties,  24:   by  act  of  law,  42:  by  suit,  44. 


BOOK  IIL 


OF  PRIVATE  WRONGS. 


CHAPTER  I. 

OF  THE  REDRESS  OF  PRIVATE  WRONGS. 

"  At  the  opening  of  these  commentaries  municipal  law  is  defined  to  be, 
*  a  rule  of  civil  conduct,  prescribed  by  the  supreme  pov/erina  state.'  The 
primary  objects  of  this  law  are  the  establishment  of  rights,-  and  the  prohi- 
bition of  wrongs.  And  this  occasioned  the  distribution  of  these  collec- 
tions into  two  general  heads ;  under  the  former  of  which  we  have  already 
considered  the  rights  that  were  defined  and  established,  and  under  the  lat- 
ter are  now  to  consider  the  wrongs  that  are  forbidden  and  redressed  by  the 
laws  of  the  land. 

"  In  the  prosecution  of  the  first  of  these  enquiries,  we  distinguished  rights 
into  two  sorts :  first,  such  as  concern,  or  are  annexed  to  the  persons  of  men, 
and  are  then  called  jura  personarum,  or  the  rights  of  persons  ;  which,  to- 
gether with  the  means  of  acquiring  and  losing  them,  composed  the  first 
book  of  these  commentaries:  and,  secondly,  such  as  a  man  may  acquire 
over  external  objects,  or  things  unconnected  with  his  person,  which  are 
called  jura  rerum,  or  the  rights  of  things :  and  these,  with  the  means  of 
transferring  them  from  man  to  man,  were  the  subject  of  the  second  book. 
I  am  now,  therefore,  to  proceed  to  the  consideration  of  wrongs  ;  which  for 
the  most  part  convey  to  us  an  idea  merely  negative,  as  being  nothing  else 
but  a  privation  of  right.  For  which  reason  it  was  necessary,  that  before 
we  entered  at  all  into  the  discussion  of  wrongs,  we  should  entertain  a  clear 
and  distinct  notion  of  rights:  the  contemplation  of  what  is  jus  being  ne- 
cessarily prior  to  what  may  be  termed  injuria,  and  the  definition  of  fas  pre- 
cedent to  that  of  nefas. 

"Wrongs  are  divisible  into  two  sorts  or  species ;  private  wrongs  and 
public  wrongs.  The  former  are  an  infringement  or  privation  of  the  private 
or  civil  rights  belonging  to  individuals,  considered  as  individuals;  and  are 
thereupon  frequently  termed  civil  injuries  :  the  latter  are  a  breach  and  vi- 
olation of  public  rights  and  duties,  which  affect  the  whole  community  con- 
sidered as  a  community  ;  and  are  distinguished  by  the  harsher  appellation 
of  crimes  and  misdemesnors.  To  investigate  the  first  of  these  species  of 
wrongs,  with  their  legal  remedies,  will  be  our  employment  in  the  present 
book. 

"  The  more  effectually  to  accomplish  the  redress  of  private  injuries, 
courts  of  justice  are  instituted  in  every  civilized  society,  in  order  to  protect 
the  weak  from  the  insults  of  the  stronger,  by  expounding  and  enforcing 
those  laws,  by  which  rights  are  defined,  and  wrongs  prohibited.  This 
remedy  is  therefore  ^^rinci/jaZ/^  to  be  sought  by  application  to  these  courts 
of  justice ;  that  is,  by  civil  suit  or  action.  For  which  reason  our  chief  em- 
Vol.  2—1 


2  SELF-DEFENCE RECAPTION.  [book  3. 

ploymcnt  in  this  volume  will  be  to  consider  the  redress  of  private  wrongs, 
liV  suit  or  action  in  courts.  But  as  there  are  certain  injuries  of  such  a  na- 
ture, that  some  of  them  furnish  and  others  require  a  more  speedy  remedy 
than  can  be  had  in  the  ordinary  forms  of  justice,  there  is  allowed  in  those 
cases  an  extrajudicial  or  eccentrical  kind  of  remedy ;  of  which  I  shall  first 
of  all  treat,  before  I  consider  the  several  remedies  by  suit ;  and,  to  that  end, 
shall  distribute  the  redress  of  private  wrongs  into  three  several  species : 
first,  that  which  is  obtained  by  the  7ncre  act  of  the  jjarties  themselves  ;  se- 
condly, that  which  is  effected  by  the  mere  act  and  operation  of  law;  and, 
tiiirdly,  that  which  arises  from  suit  or  action  in  courts  which  consists  in  a 
conjunction  of  the  other  two,  the  act  of  the  parties  co-operating  with  the 
act  of  law. 

"And,  first,  of  that  redress  of  private  injuries,  which  is  obtained  by  the 
mere  act  of  the  parlies.  This  is  of  two  sorts  ;  first,  that  which  arises  from 
the  act  of  the  injured  party  only  ;  and,  secondly,  that  which  arises  from  the 
joint  act  of  all  the  parties  together:  both  which  I  shall  consider  in  their 
order. 

"  Of  the  first  sort,  or  tliat  which  arises  from  the  sole  act  of  the  injured 
party,  is, 

"  I.  The  defence  of  one's  self,  or  the  mutual  and  reciprocal  defence  of 
s"uch'  as  stand  in  the  relations  of  husband  and  wife,  parent  and  child,  mas- 
ter and  servant."  It  is  said,  indeed,  that  a  master  cannot  justify  a  battery 
in  defence  of  a  servant;  though  this  appears  to  be  questionable,  and  opin- 
ions have  been  divided  on  the  subject.  See  1  Esp.314,  citing  1  Lord  Ray. 
H2,  Bac.  master  and  servant.  This  right  of  defence,  if  it  does  exist,  is 
however  sufficiently  limited  and  guarded  to  prevent  its  abuse.  For  the  ser- 
vant cannot  justify  striking  one  who  has  already  stricken  his  master,  unless 
lio  shows  that  it  was  done  as  a  prevention  to  further  injury.  2  Str.  1)53. 
There  seems,  therefore,  little  reason  for  the  opinion  that  a  master  cannot 
justify  an  assault  to  prevent  a  battery  of  his  servant.  See  the  form  of  this 
plea  of  justification,  2  Cliitty,  5'24.  In  truth,  any  man  who  sees  two  oth- 
ers fighting,  or  about  to  fight,  may  prevent  it,  and  justify  his  doing  so.  See 
form  of  plea,  Chitty,  bid.  But  he  must  use  no  more  force  than  is  neces- 
sary for  prevention. 

'•  In  those  cases  in  which  the  right  of  self-defence  is  recognized  as  ex- 
isting, if  the  party  himself,  or  tliose  standing  in  the  above  mentioned  rela- 
tions to  him,  be  forcibly  attacked  in  his  person  or  property,  it  is  lawful  for 
him  to  repel  force  by  force  ;  and  the  breach  of  the  peace,  Avhich  happens, 
is  chargeable  upon  him  only  who  began  the  affray.  For  the  law,  in  this 
case,  respects  the  passions  of  the  human  mind  ;  and  (when  external  vio- 
lencf;  is  oflTered  to  a  man  himself,  or  those  to  whom  he  bears  a  near  con- 
nnxion,)  makes  it  lawful  in  him  to  do  himself  that  immediate  justice,  to 
which  he  is  prompted  by  nature,  and  which  no  prudential  motives  are  strong 
enough  to  restrain.  It  con.>idcrs  that  the  future  process  of  law  is  by  no 
means  an  adequate  remedy  for  injuries  accompanied  with  force  ;  since  it 
is  iinj>0S3ibIc  to  tay,  to  what  wanton  lengths  of  rapine  or  cruelty,  outrages 
of  this  sort  might  be  carried,  unless  it  were  permitted  a  man  immediately 
to  oppose  one  violence  with  another.  Self-defence,  therefore,  as  it  is  justly 
called  the  primary  law  of  nature,  so  it  is  not,  neither  can  it  be  in  fact,  ta- 
ken away  by  the  law  nf  society.  By  the  common  law,  j)articularly,  it  is 
held  an  excuse  fur  breach^'s  of  the  peace,  nay  even  for  homicide  itself:  but 
care  must  be  taken,  that  the  resistance  dues  not  exceed  the  bounds  of  mere 
defence  and  prevention  ;  for  Oion  the  defender  would  himself  become  an 
aggressor. 

"  II.  Recaption  or  reprisal  is  another  species  of  remedy  by  the  mere  act 
of  the  party  injured.     Thi";  happens,  when  any  one  hath  deprived  auothc:-' 


CHAP.  1.]  RECAPTION.  3 

of  his  property  in  goods  or  chattels  personal,  or  wrongfully  detains  one's 
wife,  child,  or  servant:  in  which  case  the  owner  of  the  goods,  and  the  hns- 
band,  parent,  or  master,  may  lawfully  claim  and  retake  them,  wherever  he 
liappens  to  find  them  ;  so  it  be  not  in  a  riotous  mannef,  or  attended  with  a 
breach  of  the  peace.  The  reason  for  this  is  obvious  ;  since  it  may  frequent- 
ly happen  that  the  owner  may  have  this  only  opportunity  of  doing  himself 
justice  :  his  goods  may  be  afterwards  conveyed  away  or  destroyed  ;  and  his 
wife,  children,  or  servants,  concealed  or  carried  out  of  his  reach;  if  he  had 
no  speedier  remedy  than  the  ordinary  process  of  law.  If,  therefore,  he  can 
so  contrive  it  as  to  gain  possession  of  his  property  again,  without  force  or 
terror,  the  law  favors  and  will  justify  his  proceeding.  But,  as  the  public 
peace  is  a  superior  consideration  to  any  one  man's  private  property ;  and 
as,  if  individuals  were  once  allowed  to  ase  private  force  as  a  remedy  for 
private  injuries,  all  social  justice  must  cease,  the  strong  would  give  law  to 
the  weak,  and  every  man  would  revert  to  a  state  of  nature :  for  these  rea- 
sons it  is  provided,  that  this  natural  right  of  recaption  shall  never  be  ex- 
erted, where  such  exertion  must  occasion  strife  and  bodily  contention,  or 
endanger  the  peace  of  society.  If,  for  instance,  my  horse  is  taken  away, 
and  I  find  him  in  a  common,  a  fair,  or  a  public  inn,  I  may  lawfully  seize 
him  to  my  own  use ;  but  I  cannot  justify  breaking  open  a  private  stable,  or 
entering  on  the  grounds  of  a  third  person,  to  take  him,  except  he  be  felo- 
niously stolen  ;  but  must  have  recourse  to  an  action  at  law."  But  herein 
there  is  a  difference  between  indictments  and  private  actions.  In  the  case 
of  Long  vs.  Hite,  in  the  superior  court  of  law  at  Winchester,  September, 
1823,  it  was  decided,  that  where  the  right  of  recapture  of  the  defendant's 
horse  was  exerted  in  a  forcible  manner,  and  the  horse  was  taken  from  the 
plaintiff's  wagon,  although  no  more  force  was  used  than  was  absolutely  ne- 
cessary to  regain  the  possession  of  the  property,  the  recaptor  was  liable  to 
the  action  of  the  party  having  the  property  in  his  possession,  for  stopping 
his  wagon.  From  this  decision  there  was  an  appeal  on  the  ground  of  a 
supposed  distinction  between  a  prosecution  for  a  breach  of  the  peace,  and 
the  action  of  the  party  from  whom  the  property  was  retaken.  For  though 
the  commonwealth  might  punish  the  violence,  whether  it  exceeded  what 
was  necessary  for  the  recapture  or  not,  the  wrongdoer,  it  was  said,  could  not 
complain  of  an  injury  which  flowed  from  his  own  conduct.  The  court 
of  appeals  reversed  the  judgment  of  the  court  below,  deciding  that  the 
defendant's  plea  of  justification  was  a  good  plea  in  bar  of  the  plaintiff's 
action,  though  it  admitted  the  force,  since  it  was  alleged  that  no  more  forc<? 
was  used  than  the  plaintiff's  conduct  rendered  necessary  to  enable  the  de- 
fendant to  regain  his  possession.  6  Ran.  457.  See  8  T.  R.  78-  But 
farther  than  this  the  recaptor  cannot  go.  For,  in  8  T.  R.  299,  it-=s  said  by 
the  court,  that  though  the  plea  of  mollitur  manus  hnposuit  would  justify 
what  the  law  considers  an  assault,  yet  it  never  was  considere-* 'is  an  answer 
to  a  charge  of  beating,  wounding,  and  knocking  the  party  down  :  and  they 
adverted  to  a  case  where  the  defendant  overturned  a  bdder  on  which  the 
plaintiff  was  standing,  and  threw  him  to  the  ground,  '^''le  defendant  plea- 
ded that  the  plaintiff  was  trespassing  upon  hi"s  property,  and  was  forbidden 
by  him,  but  that  he  persistsd,  wherefore  he  gen-'<'y  shook  the  ladder  and 
overturned  it,  and  gently  threw  the  plaintiff'  (iJwn  with  as  little  damage  as 
possible.  The  plea  was  held  bad  on  demv-irer.  For  it  is  observable  that 
beating  is  not  that  kind  of  force  which  '^  necessary  to  enable  the  party  to 
retake  his  property,  however  it  mio-ht'*^  calculated  to  make  his  adversary 
surrender  it. 

III.  "  As  recaption  is  a  remedy  given  to  the  party  himself,  for  an  injury 
to  his  personal  property,  so,  th-^dly,  a  remedy  of  the  same  kind  for  injuries 
to  real  property,  is  by  entn/  on  lands  and  tenements,  when  another  person 


4  ABATEMENT.  [BOOK  3. 

without  any  rinrht  has  taken  possession  thereof.*  This  depends  in  some 
measure  on  like  reasons  with  the  former ;  and  like  that,  too,  must  be  peace- 
able and  without  force.  There  is  some  nicety  required  to  define  and  dis- 
tinguish the  cases  in  which  such  entry  is  lawful  or  otherwise  ;  it  will  there- 
fore be  more  fully  considered  in  a  subsequent  chapter ;  being  only  mention- 
ed in  this  place  for  the  sake  of  regularity  and  order. 

IV.  "  A  fourth  species  of  remedy  by  the  mere  act  of  the  party  injured, 
is  the  abatement,  or  removal  of  nuisancesA  What  nuisances  are,  and  their 
several  species,  we  shall  find  a  more  proper  place  to  enquire  under  some 
of  the  subsequent  divisions.  At  presept  I  shall  only  observe,  that  whatso- 
ever unlawfully  annoys  or  doth  damage  to  another  is  a  nuisance  ;  and  such 
nuisance  may  be  abated,  that  is,  taken  away  or  removed,  by  the  party  ag- 
grieved thereby,  so  as  he  commits  no  riot  in  the  doing  of  it.  If  a  house 
or  wall  is  erected  so  near  to  mine  that  it  stops  my  ancient  lights,  which  is 
n  private  nuisance.  I  may  enter  my  neighbor's  land,  and  peaceably  pull  it 
down.  Or  if  a  new  gate  be  erected  across  the  public  highway,  which  is  a 
common  nuisance,  any  person  passing  that  way  may  cut  it  down  and  des- 
troy it.  And  the  reason  why  the  law  allows  this  private  and  summary  me- 
thod of  doing  one's  self  justice,  is  because  injuries  of  this  kind  which  ob- 
struct or  annoy  such  things  as  are  of  daily  convenience  and  use,  require  an 
immediate  remedy,  and  cannot  wait  for  the  slow  progress  of  the  ordinary 
forms  of  justice. 

'  Willi  respect  to  land  and  houses,  also,  resumption  of  possession  by  the  mere  act  of  the  party  is 
frequently  allowed.  'I'hus,  if  a  tenant  omit,  at  tlie  expiration  of  Ills  tenancy,  to  deliver  up  possession, 
the  landlord  may  legally,  in  liis  absence,  fereak  open  the  outer  door  and  resume  possession,  though 
some  articles  of  furniture  remain  therein  ;  and  if  tlie  landlord  put  his  cattle  on  the  land,  and  the  te- 
nant diiirain  them  ns  damage-feasant,  he  may  be  sued.  1  Bing.  R.  158.  7  T.  11.  431,  2.  J  Price  It. 
&j.  Andr.  109.  6  Taunt.  202.  If  the  landlord,  in  resuming  possession,  be  guilty  of  a  forcible  entry 
■with  strong  hand,  or  other  illegal  breach  of  the  peace,  he  will  be  liable  to  an  indictment.  7  T.  R. 
Ail  3  T.  R.  ao.  6  'iaun.  302.  8  T.  R.  3G4,  403.  But  the  circumstance  of  the  owner  of  properly 
ming  loo  much  force  in  regaining  possession,  but  taking  care  to  avoid  personal  injury  to  the  pany  re- 
sisting, will  not  enable  the  latter  to  sue  him.  But  if  any  unnecessary  violence  to  the  person  be  used 
in  rescuing  or  defending  possession  of  real  or  personal  properly,  the  parly  guilty  of  it  is  liable  to  be_ 
sued.  3  T.  R.  til*.  Id.  78.  I  tsaund.  296,  n.  I.  tio,  as  tlie  law  allows  retaking  of  the  possession  of 
the  land,  it  also  sanctions  the  due  defence  of  the  possession  thereol ;  and,  therefore,  tliougii  if  one 
cnicr  into  my  ground,  I  must  request  him  to  depart  before  I  can  lay  hands  on  him  to  turn  himout,  yet 
if  lie  refuse  Imay  then  push  him  out,  and  if  he  enter  with  actual  force  1  need  not  first  request  him  to 
be  gone,  but  may  lay  hands  on  him  immediately.   8  T.  R.  73.    11 C.  L.  R.  297.    I  Salk.  Gil.— Cliiity. 

t 'i'hus,  in  case  of  a  public  nuisance,  if  a  house  be  built  across  a  highway,  any  person  may  pull  it 
down;  and,  it  is  said,  he  need  not  observe  particular  care  in  abating  it,  so  as  to  prevent  injury  to  the 
rnaieri.ilp.  And  though  a  gate,  illegally  fastened,  might  have  been  opened  witlieut  cutting  it  down, 
vet  ihecutiiiig  would  be  lawful.  However,  it  is  a  general  rule,  that  the  abatement  must  Be  limited 
i<y  lis  necessiiy,  and  no  wanton  or  unnecciwary  injury  must  be  committed.  2  Salk.  458.  As  to  pri- 
vate nuisances,  tiiey  alsj  may  be  abated  ;  and  therefore  it  was  recently  held,  that  if  a  man  in  his  own 
8*'l  erect  a  thing  which  is  a  nuisance  to  another,  as  by  stopping  a  rivulet,  and  so  diminishing  the  wa- 
ter ii.»,|  [jy  iiie  latter  for  his  cattle,  the  party  injured  may  enter  on  the  soil  of  the  other  and  abate  the 
iiuisanj^  and  justify  the  trespass  :  and  this  right  of  abatement  is  not  confined  merely  to  a  house, mill, 
or  land.  >  Hinith's  Rep.  9.  2  Rol.  Ab.  565.  2  Ixon.  202.  Com.  Dig.  Pleader.  3  ft  I.  42.  3  Lev.  92. 
fco  11  Hecm».i,a(  a  libcllouB  print  or  paper,  affecting  a  private  individual,  mav  be  destroyed,  or,  which 
IS  the  salLr  co.rgc,  mkcn  and  delivered  lo  a  magi.'iirate.  5  Coke,  1'25,  b.  2"(>amp.  511.  Per  Best,  J. 
in  the  Karl  Lonw^if  ,.,,  Nelson,  i!  Bar.  &  Cres.  31',  "nuisances,  by  an  act  of  commisiion,  are  com- 
mitted in  deliancc  .filiose  whom  such  nuihances  injarc,  and  the  injured  parly  may  abate  them  with- 
out notice  to  Uic  pc«o,j  ^ho  commitlcd  ihejn;  but  there  is  no  decided  ca«e  which  sanctions  tlio 
abatrment,  by  an  iiidiv.li,;,|^  of  nuisances  from  omission,  except  that  of  cutting  the  branches  of  irees 
winch  overhang  a  public  „,ad,  or  the  private  properly  of  the  person  who  cuts  iheni.  The  permitting 
these  branclicii  to  exlonrl  ijof^r  beyond  the  soil  of  the  owner  of  the  Irccs,  is  an  unequivocal  act  of  nc- 
Cligencc,  which  diHiinguisheg  i,ja  pase  from  most  of  tlie  other  cases  that  have  occurred.  The  securi- 
ty ol  lives  and  properly  may  Hoi.,.jj^pg  require  so  speedy  a  remedy  as  not  lo  allow  time  to  call  on  the 
person  on  whose  property  the  mi>.|,ieri,a.s  arisen  to  remedy  it;  in  such  cases,  an  individual  would 
be  judiihed  III  .-Jl,aiin/  a  nuisance  fro.,  omission  without  notice,  in  all  oilier  cases  of  .^uch  nuisances, 
persons  nhould  not  lake  the  law  into  iIki,.  own  hands,  but  follow  the  advice  of  Lord  Hale,  and  appeal 
to  a  court  of  jugticc.       And  sec  farther  oi)owl.  At  it.  .W,.    And  it  wa.-  held  in  the  same  case,  that 


i  »ie  abater  ol  a  private  nuisance  cannot  remove  the  ..aterials  further  than  neces.sary,  or  convert 
them  to  his  own  iigc.  Halt.  c.  50.  And  so  mucli  only  of  .Se  thing  as  causes  the  nuisaii<e  should  bo 
removed ;  as  if  ni  house  be  bin  t  too  high,  only  so  ranch  of  it  <„  ig  too  high  should  be  pulled  down.  'J 
ilcp.  53.    Ood.  2J1.    2  bua.  686.  ClUUy. 


CHAP.  1.]  DISTRESSES.  5 

V.  "  A  fifth  case,  in  which  the  law  allows  a  man  to  be  his  own  avenger, 
or  to  minister  redress  to  himself,  is  that  of  distraining  cattle  or  goods  for 
non-payment  of  rent,  or  other  duties ;  or,  distraining  another's  cattle  f/ar 
mage-feasant,  that  is,  doing  damage,  or  trespassing  upon  his  land.  The 
former  intended  for  the  benefit  of  landlords,  to  prevent  tenants  from  secre- 
ting or  withdrawing  their  effects  to  his  prejudice,  the  latter  arising  from 
the  necessity  of  the  thing  itself,  as  it  might  otherwise  be  impossible  at  a 
future  time  to  ascertain  whose  cattle  they  were  that  committed  the  trespass 
or  damage. 

"  As  the  law  of  distresses  is  a  point  of  great  use  and  consequence,  I 
shall  consider  it  with  some  minuteness  :  by  enquiring,  first,  for  what  inju- 
ries a  distress  may  be  taken  ;  secondly,  what  things  may  be  distrained  ;  and 
thirdly,  the  manner  of  taking,  disposing  of,  and  avoiding  distresses. 

1.  "  And,  first,  it  is  necessary  to  premise,  that  a  distress,  districtio,  is  the 
taking  a  personal  chattel  out  of  the  possession  of  the  wrongdoer  into  the 
custody  of  the  party  injured,  to  procure  a  satisfaction  for  the  wrong  com- 
mitted. 1.  The  most  usual  injury,  for  which  a  distress  may  be  taken,  is 
that  of  non-payment  of  rent."  It  was  observed  in  a  former  book,  that 
distresses  were  incident  by  the  common  law  to  every  rent-service,  and  by 
particular  reservation  to  rent-charges  also  ;  but  not  to  rent-seek  by  our  law. 
So  that  the  rule  to  be  laid  down  with  us,  is  that  a  distress  may  be  taken  for 
rent  in  arrear  in  all  cases,  where  the  party  distrained  holds  an  estate  for  lifo 
or  any  less  estate,  and  the  distrainor  hath  the  reversion  dependant  thereup» 
on  ;  and  also  in  all  cases  of  rent-charges,  when  the  rent  is  in  arrear.* 
Hence,  where  the  party  has  not  the  legal  estate  or  a  reversion,  he  shoul4 
reserve  a  power  of  distress.     Co.  Litt.  47,  a*. 

2.  Distresses  are  authorized  by  particular  statutes  in  a  variety  of  cases  % 
es  for  taxes  and  poor  rates — for  militia  fines- — for  oflicers'  feebills,  &c.  but 
of  these  we  shall  say  nothing  here,  except  to  remark,  that  in  all  such  cases, 
the  statutory  remedy  must  be  pursued  with  the  utmost  strictness. 

3.  Another  injury,  for  which  distresses  may  be  taken,  is  where  a  man 
finds  beasts  of  a  stranger  wandering  in  his  grounds,  damage-feasant ;  that 
is,  doing  him  hurt  or  damage,  by  treading  down  the  grass,  or  the  like ;  in 
which  case  the  owner  of  the  soil  may  distrain  them,  till  satisfaction  be  made 
Iiim  for  the  injury  he  has  thereby  sustained.  We  have  few  instances  of  this 
species  of  distress  in  Virginia.  I  have  never  known  but  one  in  the  course 
of  my  practice,  and  the  difficulties  which  attended  that  case,  incline  me  to 
think  that  it  is  a  remedy  rarely  advisable,  as  the  properly^distrained  must  be 
impounded  and  not  used.  Moreover,  there  being  no  common  pound,  the 
landholder,  if  he  impounds  in  a  special  pound  overt,  must  give  the  owner 
notice  ;  or  if  he  impounds  in  a  pound  covert,  he  must  also  provide  the  beasts 
with  necessaries,  and  for  doing  so  he  will  be  entitled  to  no  satisfaction 
against  the  owner.  Co.  Litt.  47.  2  Inst.  106.  Besides  this,  there  are  so 
many  niceties  with  respect  to  the  disposition  of  common  law  distresses,  all 
of  which  exist  in  relation  to  distresses  damage-feasant  at  this  day,  that  the 
remedy  will  probably  become  obsolete  unless  adapted  to  modern  times  by 
legislative  provision.     See  Bac.  Distresses,  D.  F. 

To  entitle  a  person  to  destrain  for  non-payment  of  rent,  it  must  be  due  under  n  demise,  and  for 
vent  fixedAwA  certain  in  its  nature ;  and,  therefore,  if  a  person  ije  let  into  possession  under  an  agree- 
ment for  a  lease  which  does  not  contain  words  of  immediate  demise,  no  distress  can  be  made,  unless 
from  a  previous  payment  of  rent,  or  other  circumstance,  a  tenancy  from  year  to  year  can  be  inferred, 
and  theonly  remedy  is  by  action  for  use  and  cccupation.  2  Taun.  IIS.  5  B.  &A.  322.  13  East,  19. 
So,  as  Lord  Coke  quaintly  says,  (Co.  Lit.  06,  a,)  it  is  a  maxim  in  law,  that  no  distress  can  be  taken  for 
any  services  that  are  not  put  into  certainty,  nor  can  be  reduced  to  any  certainty,  for  iV  certum  est  quod 
certum  reddi  potest,  but  yet  in  some  cases  there  may  be  a  certainty  in  uncertainty.  Tiiercforc,  if  a 
man  hold  land,  paying  so  much  per  acre,  alihough  in  the  terms  of  the  demise  the  number  of  acres  bo 
not  fixed,  the  lord  may  distrain.  Vin.  Ab.  Distress,  E.  See  form  of  avowry.  3  Cliitty  on  V\.  'lih  cd. 
105L  But  where  an  estate  has  been  let  without  in  any  way  fixing  the  amount  of  rent,  the  only  re- 
medy js  by  action.  Chitiy. 


<)  DISTRESSES.  [book  3. 

Having  thus  succiuctly  stated  the  injuries  for  wliich  a  distress  may  be  ta- 
ken, I  sliall  recur  to  the  subject  of  the  first  species  of  distresses  above  men- 
tioned, viz.  for  rent  in  arrear,  in  order  to  bring  before  the  student  some  im- 
portant considerations  which  are  omitted  by  the  Commeniator. 

1.  The  first  matter  of  enquiry  to  which  it  behoves  us  to  direct  our  atten- 
tion, rebates  to  the  amount  of  rent  which  the  suiter  may  be  entitled  to  re- 
cover, and  herein  of  the  right  to  interest  on  arrears  of  rent ;  of  tlie  opera- 
tion of  the  statute  of  limitations;  of  the  apportionment  where  apportion- 
ment is  to  be  made,  and  of  the  landlord's  demanding  too  much  or  too  little, 
and  the  effect  thereof". 

Interest  on  rent. — It  is  abundantly  clear  that  no  interest  upon  rent  due 
can  be  distrained  for.  Whether  the  landlord  is  entitled  to  recover  interest 
upon  the  arrears  of  rent  due  from  the  tenant  in  any  other  mode,  appears  to 
Jiave  been  indeed  vexata  qucEStio,  nor  is  it  perhaps  entirely  settled  by  a  re- 
cent decision  of  the  court  of  appeals.  There  is  no  doubt  that  in  early 
times,  for  certain  quaint  reasons,  as  well  as  on  some  sound  and  practical 
grounds,  interest  was  not  allowable  upon  rents  in  arrear.  It  is  not  won- 
derful that  it  should  have  been  alleged  that  rent  was  interest  of  itself,  and 
therefore  interest  could  not  grow  out  of  it,  when  we  recollect  that  even  in- 
terest upon  money  was  once  thought  unreasonable,  because,  as  was  said, 
money  could  not  breed  money.  But  in  ancient  times  much  practical  good 
sense  and  consistency  are  to  bo  found  in  the  principles  of  law  obscured 
and  concealed  by  quaintness  and  conceit ;  and  accordingly  in  the  present 
■instance  we  find  that  besides  the  unsubstantial  reason  which  has  been 
mentioned,  there  was  another  which  really  did  prevail ;  that  as  the  landlord 
•was  bound  by  law  to  demand  the  rent  upon  the  land,  and  the  tenant  was  not 
hound  to  seek  him  elsewhere,  it  was  the  fault  of  the  lessor  if  he  suffered 
the  rent  to  be  in  arrear,  and  particularly  as  he  had  a  right  of  distress,  and 
often  a  right  of  entry.  This  principle  has  continued  to  prevail  even  in  very 
late  days,  and  in  our  own  courts  ;  and  accordingly  it  has  been  decided  that 
a  decree  allowing  interest  upon  rents  was  erroneous  ;  Skipwith  vs.  Clinch, 
2  Call,  257  ;  because  if  the  amount  due  was  certain  and  ascertained,  the 
lessor  might  have  distrained,  and  should  not  have  lain  by  and  suflered  the  in- 
terest to  accumulate  ;  and  if  uncertain  and  unascertained,  then  on  other  prin- 
ciples interest  was  not  deinandal)le.  In  Cooke  vs.  Wise,  (3  H.  &M.  463,) 
more  recently  decided,  the  same  question  came  on  before  the  court  of  ap- 
peals in  an  action  of  debt  for  rent  where  interest  had  been  allowed  in  the 
court  below  by  way  of  damages.  For  that  cause  the  judgment  was  reversed, 
the  appellate  court  thus  aflirming  that  no  interest  was  allowable  on  rents. 
So  in  Newton  vs.  Wilson,  (3  H.  &,  M.  470,)  which  was  also  an  action  of 
debt,  the  rjuestion  was  elaboratnly  argued  both  by  the  bar  and  by  the  bench, 
and  the  same  ])rinciple  was  again  aflirmed  by  amiijority  of  the  court.  The 
opinions  of  the  judges  may  be  couhullcd  with  advantage  as  giving  a  general 
view  of  the  cases  which  have  occurred  upon  the  subject.  It  will  there  be 
ibund  that  in  some  cases  our  courts  had  allowed  interest  upon  rent,  and 
had  manifesled  some  dispo>ition  to  unfetter  themselves  from  the  rule  by  dis- 
tinctions and  oxcej)lions.  Thus,  in  the  case  of  Graham  vs.  Woodson,  (2 
Call,  'ili),)  interest  had  been  allowed  under  particular  circumstances  upon 
rent,  by  a  court  of  equity  ;  and  in  Watson  vs.  Alexander,  (1  Wash.  340,) 
■which  was  an  action  of  covenant,  Judge  Pendleton  is  supposed  to  have  ta- 
ken a  distinction  between  an  action  of  covenant  and  an  action  of  debt,  and 
to  have  aliirmod  the  power  of  the  jury  in  the  former  to  allow  interest,  but  to 
deny  it  in  the  latter.  On  a  reference,  indeed,  to  the  case,  this  inference 
does  not  seem  fairly  deducihle  from  that  opinion,  nor  is  the  dictum  relied  on 
by  .Judge  Roane,  who  tlisscnted  from  the  decision  oi  the  court  in  Newton 
vs.  Wilsou.     To  this  diseent,  and  to  the  yet  undefined  character  of  the  rule 


CHAP.  L]  DISTRESSES*  7 

upon  the  subject,  is  to  be  attributed  the  speedy  recurrence  of  the  question 
before  the  same  tribunal,  in  the  case  of  DoW  vs.  Adams's  ackninistrators. 
5  Mun.  21.  That  was  an  action  of  covenant,  but  no  distinction  was  taken' 
by  the  court  in  its  decision,  between  the  different  species  of  action.  The 
kinouage  of  the  judgment  is  general,  that  "althougli  interest  ought  not  to 
be  given  as  of  course,  in  actions  for  the  recovery  of  rent  in  arrear,  it  may 
nevertheless  be  given  under  circumstances,  to  be  judi^ed  of  by  the  jury  ; 
and  that  in  case  of  a  general  verdict  allowing  interest,  it  shall  be  intended 
that  sufficient  circumstances  existed  to  justify  the  allowance."  (5  Kan. 
571,  accord.)  In  that  case,  however,  the  court  did  not  think  the  circum- 
stances sufficient  to  justify  it,  and  therefore  reversed  the  judgment.  Those 
circumstances  were  stated  by  the  jury  in  a  conditional  verdict,  submitting 
the  question  of  law  to  the  court.  They  were,  on  the  one  hand,  that  there 
was  always  sufficient  distress  on  the  premises,  and  on  the  other,  that  the 
rent  was  demanded  but  not  satisfied.  Thus  this  case  yet  left  the  doctrine 
unsettled,  as  must  always  be  the  consequence  where  questions  are  made  to 
depend  on  circumstances.  Happily,  however,  in  all  actions  of  replevin,  the 
act  of  assembly  has  now  removed  the  difficulty,  by  declaring  that  in  cases 
of  replevin,  interest  shall  be  allowed  upon  the  rent  from  the  time  it  became 
due ;  Scss.  acts,  1823,  ch.  29 ;  and  though  the  terms  of  the  law  seem  to 
confine  the  provision  to  the  case  of  distresses,  yet  it  is  probable  that  the 
other  remedies  for  the  recovery  of  rent  will  be  deemed  by  the  courts  to  be 
within  th€  equity  of  the  statute.  The  case  above  cited  from  5  Ran.  571, 
arose  prior  to  the  act  of  1823,  and  therefore  does  not  affect  this  opinion. 

Secondly.  Of  the  operation  of  the  statute  of  limitations.  By  the  act  of 
assembly  it  is  provided  that  no  distress  for  rent  shall  be  made  in  any  case 
whatsoever,  but  within  five  years  after  it  siiall  have  become  due  and  unpaid  ; 
1  R.  C.  ch.  113,  §  21 ;  and  herein  it  mast  be  observed  that  there  is  no  sa- 
ving- of  the  rights  of  infants, /ernes  covert^  persons  7wn  sane,  imprisoned,  or 
beyond  sea,  (i,  e.  out  of  the  country,)  as  is  usual  in  the  statutes  of  limita- 
tion. It  is  also,  by  another  statute,  enacted  that  actions  of  debt  for  arrear- 
ages of  rent  shall  be  sued  for  within  five  years  next  after  the  rent  became 
due  and  unpaid  ;  1  R.  C.  ch.  128,  §  4  ;  but  there  is  as  to  this,  a  saving  of 
the  rights-  of  infants  and  others  mentioned  above.  The  English  statute 
from  which  this  is  taken,  has  been  decided,  however,  not  to  extend  to  rents 
due  by  indenture  of  lease.  Freeman  vs.  Stacy,  Hutt.  109,  cited  1  Esp.  Ni. 
Pri,  23(?.  Certain  it  is  that  in  such  case  its  effect  is  avoided  by  an  action 
of  covenant  for  the  rent  upon  the  indenture,  which  is  not  within  the  act. 
But  where  a  lease  is  by  parol,  i.  e.  by  oral  contract  or  writing  not  under 
seal,  no  rent  can  be  recovered  which  has  been  more  than  five  years  in  ar- 
rear, if  the  defendant  insists  upon  the  statute.  This  it  has  been  said  he 
may  do,  even  upon  nil  debit  pleaded,  (Salk.  278.  1  Esp.  262,)  though  that 
may  well  be  doubted,  I  think,  both  upon  principle  and  the  authority  of  ad- 
judicated cases.  See  6  Mun.  356.  See  also  Bac.  Lim.  of  Act.  F.  1  Saun. 
283,  n*  2.     Of  this,  however,  more  elsewhere. 

Thirdly.  As  to  cases  of  apportionment.  It  will  be  recollected  that  this 
term  is  used  in  the  books  in  two  senses  ;  first,  a«  signifying  abatement ; 
secondly,  as  applying  to  the  case  of  a  rent  divided  among  several.  Where 
for  any  cause  the  tenant  is  entitled  to  an  abatement  or  apportionment  of  the 
rent,  we  have  seen  that  it  is  the  province  of  the  jury  to  ascertain  the  amount 
to  be  abated,  and  the  duty  of  the  tenant  to  insist  upon  his  right  by  plea,  or 
at  least  by  offisring  evidence  on  the  trial  under  the  general  issue.  The  plain- 
tiflfof  course  in  such  case  demands  the  whole  rent;  the  defendant  shews 
forth  the  matter  of  abatement,  and  the  apportionment  is  to  be  made  by  the 
jury :  not  in  proportion  to  the  number  of  acres,  but  according  to  the  value 


8  DISTRESSES.  [  BOOK  3. 

of  the  land  surrendered,  forfeited,  or  purchased,  compared  with  the  part  re- 
tained. Vent.  27G.  Roll.  Ab.  237.  Bac.  Rents,  M.  3.  3  H.  &  M.  472. 
Gilb.  on  Rents,  1S9.  But  where  the  plaintiff  claims  as  grantee  of  part  of 
the  rent  only,  he  should,  I  presume,  sue  or  distrain  for  his  part  alone,  set- 
ting out,  however,  the  whole  matter,  shewing  forth  the  whole  rent,  and  how 
he  is  but  grantee  of  part.  Certain  it  is  he  must  sue  alone,  and  cannot  join 
others  entitled  to  the  residue  of  the  rent,  and  though  the  tenant  may  thus 
be  vexed  with  several  actions,  yet  as  there  is  a  great  convenience  in  family 
settlements,  and  in  the  various  transactions  of  lil'e  in  allowing  this  partibility 
of  rents,  and  as  in  many  cases  by  act  of  law  a  rent  descends  or  is  thrown 
upon  several  persons,  the  law  has  permitted  a  rent  so  to  be  granted  to  sev- 
eral;  nor  can  the  tenant  justly  complain  of  being  vexed  by  several  actions, 
since  punctuality  on  his  part  would  absolve  him  from  all.  2  Inst.  504.  Co. 
Litt.  148,  a.     Cro.  Eliz.  C37,  Col,  771,  cited  Bac.  Rents,  M.  1. 

Fourthly.  Of  the  landlord's  demanding  too  little  or  too  much.  If  the 
landlord  demand  too  little,  he  cannot,  I  presume,  in  any  form  of  action, 
recover  by  that  action  more  than  the  amount  of  his  demand;  2  Inst.  504; 
but  I  do  not  find  it  decided  whether  he  may  sue  again,  though  he  may  dis- 
train a  second  time  for  the  deficiency.  On  the  other  hand,  he  ought  not  to 
demand  too  much  ;  2  B.  C.  12.  4  13ur.  590  ;  for  though  in  debt  and  cove- 
nant, if  he  declare  for  more  than  is  due,  he  may  release  the  overplus,  and 
take  judgment  for  what  is  really  in  arrear ;  and  though  even  in  the  case  of 
a  distress,  if  he  avow  for  too  much,  he  may,  before  judgment,  abate  his 
avowry  for  part  of  what  is  distrancd  for,  and  have  judgment  de  retorno  ha- 
hendo  for  the  residue;  Bac.  Rent,  M.  3.  1  Rolls,  R.  351.  3  Buls.  155. 
1  Esp.  310;  yet  after  judgment  he  cannot  do  this  ;  and  yet  a  judgment  ren- 
dered for  the  whole  would  be  reversed.  2  Salk.  580.  5  Mod.  303.  Com. 
R.  42.  1  Lord  Ray.  256.  Moreover,  by  statute  the  landlord  is  liable  to  be 
amerced  for  an  excessive  distress,  so  that  in  all  cases  it  behoves  him  to  be 
circumspect  as  to  the  amount  demanded.  1  R.  C.  ch.  1 13,  §  31.  And  now 
by  a  late  statute  it  is  provided  that  in  all  cases  of  replevin,  the  jury  shall  en- 
quire of  the  amount  of  rent  which  is  in  arrear  and  unpaid,  and  judgment 
shall  be  entered  accordingly  for  the  amount,  with  interest  from  the  time  it 
became  due,  besides  damages  and  costs.     Sess.  acts,  1823,  ch.  29,  §  3. 

Having  tiius  expatiated   on  the  nature  and  extent  of  the  demands  for 
which  a  distress  may  be  made,  we  proceed  to  consider, 

".Secondly,  the  things  which  may  be  distrained;  and  as  to  this  we  may 
lay  it  down  as  a  general  rule,  that  all  chattels  personal  are  liable  to  be  dis- 
trained, unless  jiarticularly  protected  or  exempted.  Instead,  therefore,  of 
lucnlioning  what  things  are  distrainable,  it  will  be  easier  to  recount 
tlios(;  whicii  arc  not  so,  with  the  reason  of  their  particular  exemptions. 
And,  1.  As  everything  which  is  distrained  is  presumed  to  be  the  property 
of  the  wrongdoer,  it  will  follow  that  such  things  wherein  no  man  can  have 
an  absolute  and  valuable  ])roperty  (as  dogs,  cats,  rabbits,  and  all  animals 
fcra  natuTcf,)  cannot  be  distrained.  Yet  if  deer  (which  are  fcra  natura) 
are  kept  in  a  private  enclosure  for  the  purpose  of  sale  or  profit,  this  so  far 
changes  their  nature,  by  reducing  them  to  a  kind  of  stock  or  merchandise, 
that  they  may  be  distrained  for  rent.  2.  Whatever  is  in  the  personal  use 
or  occupation  of  any  man,  is  for  the  time  privileged  and  protected  from 
any  distress  ;  as  an  axe  with  which  a  man  is  cutting  wood,  or  a  horse  while 
a  man  is  riding  him,"  even  though  he  be  damaixe-fcasant,  though  Mr. 
Blackstone  says  otiierwise.  See  G  T.  R.  138;  for  if  such  distresses  were 
permitted,  it  would  perpetually  lead  to  a  breach  of  the  peace. 

3.  Valuable  things  in  the  way  of  trade  shall  not  be  liable  to  distress.    As 
a  horse  standing  iu  a  smith's  tiiop  to  be  sliced,  or  in  a  common  inn;  or 


«»AP.  1.]  DISTRESSES.  9 

cloth,  at  a  tailor's  houae  ;  or  corn  sent  to  a  mill  or  a  market.  For  all  theso 
are  protected  and  privileged  for  the  benetit  of  trade;  and  are  supposed  in 
common  presumption  not  to  belong  to  the  owner  of  the  house,  but  to  his 
customer.  So  are  the  horses  and  goods  of  a  guest  at  an  inn  ;  and  from 
motires  of  public  advantage,  goods  of  a  principal  in  the  hands  of  a  factor 
or  carrier,  and  droves  of  cattle  driving  to  market  and  put  into  the  land  for 
the  night  to  rest.  See  3  Bur.  149S.  2  Saun.  -290,  n.  7.  2  Vern.  130. 
Christian's  and  Chitty's  notes.  But  horses  and  carriages  at  livery,  or  the 
goods  of  persons  dwelling  in  an  inn  as  tenants  or  boarders,  arc  not  pro-* 
tected.  3  Bur.  14i)S.  1  Bia.  Rep.  4S1.  Generally  speaking,  however, 
according  to  the  common  law,  "  whatever  goods  and  chattels  the  landlord 
finds  upon  the  premises,  whether  they  in  fact  belong  to  the  tenant  or  a 
stranger,  are  distrainable  by  him  for  rent;  for  otherwise  a  door  would  be 
open  to  infinite  frauds  upon  the  landlord  :  and  the  stranger  has  /u's  remedy 
over  by  action  on  the  case  (but  not  assumpsit.  3  Barn.  &,  Cres.  780,)  against 
the  tenant,  if  by  the  tenant's  default  the  chattels  are  distrained,  so  that  he 
cannot  render  tliom  when  called  upon.  V/ith  regard  to  a  stranger's  beasts 
which  are  found  on  the  tenant's  land,  the  following  distinctions  are  howev- 
er taken.  If  they  are  put  in  by  consent  of  the  owner  of  the  beasts,  they 
are  distrainable  immediately  afterwards  for  rent-arrere  by  the  landlord.  So, 
also,  if  the  stranger's  cattle  break  the  fences,  and  commit  a  trespass  by 
coming  on  the  land,  they  are  distrainable  immediately  by  the  lessor  for  his 
tenant's  rent,  as  a  punishment  to  the  owner  of  the  beasts  for  the  wrong 
committed  through  his  negligence.  But  if  the  lands  were  not  sufficiently 
fenced,  so  as  to  keep  out  cattle,  the  landlord  cannot  tlistrain  them  till  they 
have  been  levant  a.nd  couchant  (levanlcs  et  cubantes)  on  the  land;  that  is, 
have  been  lonij  enouirh  there  to  have  lain  down  and  rose  up  to  feed  ;  which 
in  general  is  held  to  be  one  night  at  least:  and  then  the  law  presumes  that 
the  owner  may  have  notice  whether  his  cattle  have  strayed,  and  it  is  his  own 
negligence  not  to  have  taken  them  away.  Yet,  if  the  lessor  or  his  tenant 
were  bound  to  repair  the  fences  and  did  not,  and  thereby  the  cattle  escaped 
into  their  grounds,  without  the  negligence  or  delault  of  the  owner;  in  this 
case,  though  the  cattle  may  have  been  levant  and  couchant,  yet  they  are  not 
distrainable  for  rent,  till  actual  notice  is  given  to  the  owner  that  they  are 
there,  and  he  neglects  to  remove  them  :  for  the  law  will  not  sulTcr  the 
landlord  to  take  advantage  of  his  own  or  his  tenant's  wrong.  See  2  Saun* 
289.     2  Lutw.  1580. 

The  rule  we  have  been  just  considering  has  been  altered  in  \  irginia,  it 
being  declared  by  statute  that  no  goods  or  chattels  on  the  demised  premises, 
except  such  as  belong  to  the  tenant,  or  to  some  other  person  liable  for  the 
rent,  or  some  part  thereof,  shall  be  subject  to  distress.  1  R.  C.  ch.  113,  § 
15.  But  if  the  tenant  or  person  bound  for  the  rent  have  a  limited  interest 
in  the  property,  it  may  be  distrained,  and  such  interest  sold. 

The  owner  of  goods  distrained  contrary  to  this  act,  may  sue  out  a  writ 
of  replevin  upon  giving  bond  and  security  in  double  the  amount  of  the  va- 
lue of  the  property,  to  be  ascertained  by  tv.-o  freeholders,  with  condition  to 
satisfy  the  judgment  of  the  court  if  he  be  cast  in  the  suit.  1  R.  C.  ch.  1 13, 
§  15,  24 — ^^imended,  sess.  acts,  1822,  ch.  29,  §  4.  If  he  fail  in  his  action, 
he  is  to  pay  damages  not  less  than  ten  per  cent,  upon  the  value  of  the 
goods,  and  all  costs.  The  first  of  those  acts  further  provides,  that  the 
owner  shall  have  no  relief  under  it,  except  by  replevin.  But  observe,  that 
though  in  no  other  way  can  he  have  the  benefit  of  the  act,  yet  he  may  as- 
sert his  eonvjwn  law  remedies,  mentioned  in  the  next  page  of  the  commen- 
taries, if  his  case  can  be  brought  within  the  protection  of  the  common  law 
principles :  for  the  act  in  question  is  cumulative  ;  it  adds  to  his  remedies  ; 
it  takes  away  none ;  so  that  in  excluding  the  owner  from  the  advantages  o9 
VOL.  2—2 


10  DISTRESSES.  [  book  3. 

the  act,  unless  he  sues  out  a  writ  of  replevin,  it  did  not  design  to  take  from 
him  his  common  law  privileges.* 

It  must  further  be  remarked,  moreover,  that  though  the  common  law 
rules  no  longer  apply  to  the  case  of  the  goods  of  a  stranger  who  is  not 
bound  for  the  rent,  yet  they  still  apply  in  strictness  to  one  who  is  so  bound. 
But  even  his  goods  arc  720/  liable  if  they  fall  within  anij  of  the  common  law 
privileges  on  the  subject,  for  they  arc  not  taken  away. 

"4.  There  are  also  other  things  privileged  by  the  ancient  common  law  ; 
as  a  man's  tools  and  utensils  of  his  trade,  [if  in  actual  use,  and  other  suf- 
ficient distress  can  be  found.  Co.  Litt.  47,  a.  4  T.  R.  565,]  the  axe  of  a 
carpenter,  the  books  of  a  scholar^  and  the  like  :  which  are  said  to  be  pri- 
vileged for  the  sake  of  the  public,  because  the  taking  them  away  would 
disable  the  owner  from  serving  the  commonwealth  in  his  station.  So,  beasts 
of  the  plough,  averia  carucae,  and  sheep,  are  privileged  from  distresses  at 
common  lav/  ;  while  dead  goods,  or  other  sort  of  beasts,  which  Bracton 
calls  catalla  otiosa,  may  be  distrained.  But  as  beasts  of  tlie  plough  may 
be  taken  in  execution  for  debt,  so  they  may  be  for  distresses  by  statute, 
which  partake  of  the  nature  of  executions.  And  perhaps  the  true  reason, 
why  these  and  the  tools  of  a  man's  trade  were  privileged  at  the  common 
law,  was  because  the  distress  was  then  merely  intended  to  compel  the  pay- 
ment of  the  rent,  and  not  as  a  satisfaction  for  its  non-payment :  and,  there- 
fore, to  deprive  the  party  of  the  instruments  and  means  of  paying  it,  would 
counteract  the  very  end  of  the  distress. 

"5.  Nothing  shall  be  distrained  for  rent,  which  may  not  be  rendered 
again  in  as  good  plight  as  when  it  was  distrained  :  for  wjiich  reason  milk, 
fruit,  and  tlie  like,  cannot  be  distrained,  a  distress  at  common  law  being 
only  in  the  nature  of  a  pledge  or  security,  to  be  restored  in  the  same  plight 
when  the  debt  is  paid."  Money,  unless  in  a  bag,  cannot  be  distrained. 
Rolls  Abr.  G67.  "  So,  anciently,  sheaves  or  shocks  of  corn  could  not  be  dis- 
trained, because  some  damage  must  needs  accrue  in  their  removal  ;  but  a 
cart  loaded  with  corn  might ;  as  that  could  be  safely  restored."  But  now, 
by  a  late  statute  conforming  somewhat  to  that  of  2  Wm.  &  Mary,  ch.  5,  it 
is  provided  that  hay  in  slacks,  or  grain  loose  or  in  the  straw  in  any  barn  or 
house,  and  wheat  or  other  grain  in  stacks,  ricks,  or  otherwise  secured,  may 
be  distrained,  so  as  such  distress  be  not  removed,  by  the  officer  making  the 
same,  out  of  the  place  where  it  is  found  and  seized,  but  be  kept  there  as 
impounded,  until  tlio  same  be  replevied  or  sold  ;  but  the  officer  is  not  to  be 
responsible  to  the  landlord,  in  case  the  same  be  wasted  or  eloigned  without 
his  default.     Sess.  acts,  lH.ixJ. 

6.  Goods  in  the  custody  of  tlic  law  cannot  be  distrained.  See  Willes, 
131.  Co.  Litt.  47,  a. 

Lastly,  things  fixed  to  the  freehold  cannot  be  distrained,  as  caldrons, 
windows,  doors,  and  chimney  pieces,  for  they  savourof  the  realty.  So  if  a 
millstone  be  removed  to  be  picked.  See  4  T.  R.  507,  &.  Chitty's  note  here, 
as  also  the  books  cited  by  him  as  to  what  are  fixtures. 

"  Let  us  next  consider,  thirdly,  how  distresses  may  be  taken,  disposed  of, 
or  avoided.  And  first,  I  must  j)rcmisc,  that  the  law  of  distresses  is  greatly 
altered  within  a  few  years  last  past.  Formerly,  they  were  looked  upon  in 
no  rjther  light  than  as  a  mere  pledge  or  security,  lor  payment  of  rent  or 
other  duties,  or  satisfaction  for  other  damage  done.  And  so  the  law  still 
continues  with  regard  to  distresses  of  beasts  taken  dumage-feasant,  and  for 
other  causes,  not  altered  by  act  of  parliament;  over  which  the  distrainor 
lias  no  other  power  than  to  retain  llirm  till  satisfaction  is  made.     But  dis- 

'  rjoodn  of  lliinl  persons  wprn  nnver  lialilr  lo  (iiglre.-'S  unlcHP  found  upon  the  rrrniisfs,  fn  lliat  if  dri- 
ven otT  before  (lie  diplrefs  lliey  were  abifilved;  and  even  whpd  thev  aro  found  llicic  now,  the  did- 
tr««a  is  taken  anay  bj  att  of  I8i3,  1  K.  <v.  cli.  IJ:!,  ^  15.    S«ce  1  Kaii.  'J3v.'. 


CHAP.  1.]  DISTRESSES.  11 

tresses  for  rent-arrerc  being  found  by  the  legislature  to  be  the  shortest  and 
most  effectual  method  of  compelling  the  payment  of  such  rent,  many  bene- 
ficial laws  for  this  purpose  have  been  made  in  the  present  century  ;  \vhich 
have  much  altered  the  common  law,  as  laid  down  in  our  ancient  writers. 

'•'  In  pointing  out,  therefore,  the  methods  of  distraining,  I  shall  in  general 
suppose  the  distress  to  be  made  for  rent ;  and  remark,  where  necessary,  the 
differences  between  such  distress,  and  one  taken  for  other  causes. 

"  In  the  first  place,  then,  all  distresses  must  be  made  by  day  ;  7  Rep.  a. ; 
unless  in  the  case  of  damage-feasant ;  an  exception  being  there  allowed, 
lest  the  beasts  should  escape  before  they  are  taken.  And,  when  a  person 
intends  to  make  a  distress,  he  delivers  a  warrant  of  distress  to  the  sheriff, 
constable,  or  other  officer,  directing  him  to  distrain  for  so  much  rent  as  is 
due.  The  officer  must  then  enter  on  the  demised  premises  ;  formerly  dur- 
ing  the  continuance  of  the  lease,  but  now,  if  the  tenant  holds  over,  the 
landlord  may  distrain  within  six  months  after  the  determination  of  the  lease, 
provided  his  own  title  or  interest,  as  well  as  the  tenant's  possession,  con- 
tinue at  the  time  of  the  distress.  If  the  lessor  does  not  find  sufficient  dis- 
tress on  the  premises,  formerly  he  could  resort  no  where  else  ;  and  there- 
fore tenants,  who  were  knavish,  made  a  practice  to  convey  away  their  goods 
and  stock  fraudulently  from  the  house  or  lands  demised,  in  order  to  cheat 
their  landlords.  But  now  the  landlord  may  distrain  any  goods  of  his  ten- 
ant, carried  oiT  the  premises  clandestinely,*  wherever  he  finds  them  within 
thirty  days  after,"  or  (where  the  lease  is  determined)  within  thirty  days  after 
its  termination;  Sess.  acts,  1832;  "  unless  they  have  been  bona  fide  sold 
for  a  valuable  consideration." 

By  the  common  law,  which  is  herein  unchanged  in  Virginia  by  any  sta- 
tute, the  officer  cannot  break  open  a  house  to  make  a  distress,  for  that  is  a 
breach  of  the  peace.  Dalton,  350.  But  where  he  is  once  peaceably  in  the 
house  it  is  held  that  he  may  break  open  an  inner  door.  Distress  may  be 
made  through  a  window,  if  open.     Com.  Dig.  Distress. 

No  distress  for  rent  due  more  than  five  years  is  lawful.     1  R.  C.  oh.  113. 

By  the  common  law,  the  landlord  himself,  or  his  private  bailiff,  might  dis- 
train in  person  ;  but  from  the  whole  structure  of  our  act,  I  am  inclined  to 
think  that  every  distress  in  Virginia  should  be  made  by  an  officer  of  the  lav/ 
(either  a  sheriff,  sergeant,  or  constable)  under  a  warrant  or  authority  from 
the  landlord.     See  1  Mun.  596.     2  Wash.  57. 

"  Where  a  man  is  entitled  to  distrain  for  an  entire  duty,  he  ought  to  dis- 
train for  the  whole  at  once  ;  and  not  for  part  at  one  time,  and  part  at  anoth- 
er. But  if  he  distrains  for  the  whole,  and  there  is  not  sufficient  on  the 
premises,  or  he  happens  to  mistake  in  the  value  of  the  thing  distrained,  and 
so  takes  an  insufficient  distress,  he  may  take  a  second  distress  to  complete 
his  remedy. 

"  Distresses  must  be  proportioned  to  the  thing  distrained  for."  By  the 
act,  1  R.  C.  ch.  11.3,  315,  if  any  man  takes  a  great  or  unreasonable  distress, 
for  rent-arrere,  he  shall  be  heavily  amerced  for  the  same.  As  if  the  land- 
lord distrains  two  oxen  for  twelve-pence  rent;  the  taking  of  both  is  an  un- 
reasonable distress  ;  but,  if  there  were  no  other  distress  nearer  the  value  to 
be  found,  he  might  reasonably  have  distrained  one  of  them.  The  remedy 
for  excessive  distresses  is  by  a  special  action  on  the  statute,  for  an  action  of 
trespass  is  not  maintainable  upon  this  account,  it  being  no  injury  at  the 
common  law. 

"  When  the  distress  is  thus  taken,  the  next  consideration  is  the  disposal 
of  it.  For  which  purpose  the  things  distrained  must  in  the  first  place  be 
carried  to  some  pound,  and  there  impounded  by  the  taker.     But,  in  their 

*  Where  the  lease  is  determined,  there  may  be  a  distreaa  withia  thirty  days,  tliough  tliQ  tenant  doei 
not  remove  fraudulently,    fcress.  Acts,  132~,  §  6,  ch.  '12. 


12  DISTRESSES.  [book  3. 

ivay  thither,  they  may  be  rescued  by  the  owner,  in  case  the  distress  was  ta- 
ken without  cause,  or  contrary  to  law  :  as  if  no  rent  be  due  ;  if  they  were 
taken  upon  the  highway,  or  the  like;  in  these  cases  the  tenant  may  lawful- 
ly make  rescue.  But  if  they  once  be  impounded,  even  though  taken  with- 
out any  cause,  the  owner  may  not  break  the  pound  and  take  them  out  ;  for 
they  are  then  in  the  custody  of  the  law. 

"  A  pound  (parrus,  which  signifies  any  inclosure)  is  either  pound-orer^, 
that  is,  open  overhead  ;  or  pound-corer/,  that  is,  close."  By  the  statute  1 
K.  C.  ch.  113,  §  15,  "  no  distress  of  cattle  can  be  driven  out  of  the  county 
where  it  is  taken.  This  is  for  the  benefit  of  the  tenants,  that  they  may 
know  where  to  find  and  replevy  the  distress.  If  a  live  distress,  of  animals, 
be  impounded  in  a  common  pound-overt,  the  owner  must  take  notice  of  it 
at  his  peril  ;*  but  if  any  special  pound-overt,  so  constituted  ibr  this  particu- 
lar purpose,  tlic  distrainor  must  give  notice  to  the  owiier:  and,  in  both  these 
cases,  the  owner,  and  not  the  distrainor,  is  bound  to  provide  the  beasts  with 
food  and  necessaries.  But  if  they  are  put  in  a  pound-covert,  as  in  a  stable 
or  the  like,  the  landlord  or  distrainor  must  feed  and  sustain  tliem.t  A  dis- 
tress of  household  goods,  or  other  dead  chattels,  which  are  liable  to  be  sto- 
len or  damaged  by  w'eather,  ought  lo  be  impounded  in  a  pound-covert,  else 
the  distrainor  must  answer  for  the  consequences. 

"When  impounded,  the  goods  were  formerly,  as  was  before  observed,  only 
in  the  naiurs  of  a  piedge  or  security  to  compel  the  performance  of  satisfac- 
tion ;  and  upon  this  account  it  hath  been  held,  that  the  distrainor  is  not  at 
liberty  to  work  or  use  a  distrained  beast.  And  thus  the  law  still  continues 
with  regard  to  beasts  taken  damage-feasant,  which  must  remain  impounded, 
till  the  owner  makes  satisfaction  ;  or  contests  the  right  of  distraining,  by 
replsvying  the  chattels. 

"  This  kind  of  distress,  though  it  puts  the  owner  to  inconvenience,  and 
is  therefore  a  punishment  to  hvr.,  yet  if  he  continues  obstinate  and  will 
make  no  satisfaction  or  payment,  it  is  no  remedy  at  all  to  the  distrainor. 
But  for  a  debt  due  to  the  crown,  unless  paid  within  forty  days,  the  distress 
was  always  saleable  at  common  law.  And  so,  in  statute-distresses,  which 
are  also  in  the  nature  of  executions,  the  power  of  sale  is  likewise  usually 
given,  lo  efiTectuate  and  complete  the  remedy."  So  by  1  R.  C.  ch.  113, 
§  1,  a  sale  of  jjroperty  distrained  for  rent,  is  directed,  if  the  tenant  or  own- 
er of  the  goods  distrained,  shall  not  within  ten  days  after  such  distress  ta- 
ken, and  notice  thereof,  and  the  cause  of  such  taking  left  at  the  chief 
mansion  house,  or  other  most  notorious  place  on  the  premises,  charged 
with  the  rent  distrained  for,  replevy  the  same,  by  sufficient  security  given  to 
the  sheriff  or  officer  serving  such  distress,  to  pay  the  money  or  tobacco, 
find  all  costs,  with  lawful  interest  for  the  same,  at  the  end  of  three  months. 
The  interest,  it  seems,  must  be  from  the  date  of  the  bond,  not  from  the  time 
of  payment  of  the  rent.  ()  Mun.  JJ19.  3  Mun.  277.  A  personal  notice 
though  oral  is  sufficient  to  warrant  the  sale.  1  Ld.  Ray.  53.  12  Mod. 
76.  lino  replevy  bond  be  given  according  to  this  provision,  the  officer  who 
makes  the  distress  is  directed  to  fell  the  goods  by  public  auction  to  the 
higliPBt  bidder,  on  three  months'  credit,  taking  bond  and  security  to  the 
landlord. 

If  the  tenant  give  a  replevy  bond,  it  must  recite  that  it  was  entered  into 
for  goods  or  estate  distrained  for  rent  and  restored  to  the  obligor  ;  1  R.  C. 
ch.  113,  §  1,  2;  or  if  the  goods  be  sold,  the  purchaser's  bond  shall  state  that 
it  was  given  for  goods  sold  for  rent ; — and  in  either  case  the  bonds  shall  be 

'I  am  not  nware  that  we  Iiave  any  common  poundi  in  Virginia.    Sec  Jac.  L.  Diet.  "  Pound." 
tThft  diptminor  rsnnoi  ijo  up  rattle  impoimilfrf,  and  if  lie  lie  a  hcnn  and  it  if  ctranjled,  lie  will  lie 
Tiablft  in  darpapPF.     ]  Salk.24^.     Ff  t|io  f1i«ir»n^  he  lo»(  hy  the  act  of  (iod,  a»  by  death,  the  diflrainor 
iway  di»irain  ugain.     JIFam,  51.     IJurr,  J738.  Chi'ty, 


CHAP.  1.]  DISTRESSES.  13 

delivered  to  the  landlord  within  three  months,  (§  3,)  and  if  not  paid,  he  may, 
upon  motion  before  the  justices  of  the  court  "  where  such  bond  shall  be 
lodged,"  have  an  award  of  execution  thereon,  provided  he  give  ten  days'  no- 
tice of  his  motion  :  on  such  execution  no  security  is  to  be  taken,  and  for 
the  direction  of  the  sheriff  the  clerk  shall  so  endorse.  Where  the  distress 
is  made  for  tobacco  between  the  last  of  September  and  the  last  of  October, 
the  sale  is  directed  to  be  on  a  credit  to  the  ist  of  January  thereafter,  (§  3.) 
The  officer's  commission  is  to  be  included  in  the  replevy  bond,  and  the  a- 
mount  allowed  him  is  the  same  as  on  an  execution,  (§  4.) 

On  this  act  it  has  been  decided  that  a  replevy  bond  taken  under  it,  must 
be  returned  to  the  court  to  which  the  officer  levying  the  distress  belongs,  or 
to  the  court  of  that  county  in  which  the  land  lies,  and  if  the  bond  be  deliv- 
ered to  the  landlord,  the  motion  for  execution  must  be  made  in  the  same 
court  which  would  have  had  jurisdiction  if  it  had  been  returned  according 
to  the  rule  above  mentioned.     2  Wash.  57,  58. 

If  the  replevy  bond  includes  interest  from  a  day  anterior  to  its  dale,  it  is 
erroneous,  (3  Mun.  '277,)  but  the  erroneous  interest  may  be  deducted  and 
judgment  rendered  for  the  balance,  or  an  action  of  debt  may  be  brought  on 
the  bond,  for  though  not  good  under  the  statute,  it  is  good  as  a  common 
law  bond.  6  Mun.  319.  1  Wash  367.  1  Call,  243,  249.  3  Call,  253.  A 
replevy  bond  signed  by  the  lessee,  though  not  the  owner  of  the  property 
distrained,  is  good  under  the  act  of  assembly.     2  Wash.  57. 

The  act  of  assembly  does  not  give  the  remedy  by  motion  on  a  replevin 
bond  against  executors.  ]  R.  C.  ch.  113,  §  2.  The  case  of  Glassford  and 
Henderson  vs.  Hackett,  (3  Call,  193,)  though  decided  on  a  replevy  bond  ta- 
ken on  an  execution  under  the  laws  then  in  force,  is  strictly  applicable  in. 
principle  here.  In  such  case  the  party  must  resort  to  his  common  law  rem-« 
edy  of  action  of  debt.  And  it  would  be  the  same  thing  if  the  obligee  were 
dead,  as  for  the  same  reason  his  executors  or  administrators  would  be  in- 
capable of  proceeding  by  motion. 

At  common  law  a  distress  might  be  levied  by  any  private  person  autlior- 
ized  by  the  landlord  ;  but  such  person  has  no  right  to  sell  or  to  take  a  re- 
plevy bond.  2  Wash.  57.  A  duly  qualified  officer  alone  can  do  it.  1 
Mun.  59S.  Constables  are  empowered  by  law  to  levy  attachments  for 
rents,  (1  R.  C.  ch.  113,  §  16,)  and  have  always  been  in  the  habit  of  levy- 
ing distresses  and  taking  replevin  bonds  ;  with  what  propriety  may  be 
doubted  when  the  sum  exceeds  the  ordinary  jurisdiction  of  a  justice  of  the 
peace. 

Though  the  statute  authorizes  the  replevy  within  ten  days,  yet  may  the 
party  replevy  at  anytime  before  a  sale.     See  5  Taun.  451.     1  Marsh.  135. 

The  student  will  observe  that  the  replevy  bond,  spoken  of  in  the  forego- 
ing passages,  is  given  where  the  tenant  acknowledges  the  justice  of  the  dis- 
tress, but  is  desirous  of  some  delay  for  the  purpose  of  raising  the  amount 
due  to  his  landlord.  But  in  this  sense  the  word  replevy  is  not  known  to  the 
common  law.  By  the  common  law  it  applied  only  when  the  party  denied 
the  right  of  the  distress,  and  sought  to  try  its  validity  by  an  action  called  re- 
plevin, which  he  was  allowed  to  do  on  certain  terms.  In  the  common  law 
sense  of  the  word,  in  which  sense  also  it  is  still  used  with  us,  "to  replevy 
(replegiare,  that  is,  to  back  the  pledge)  is,  when  a  person  distrained  upon 
applies  to  the  sheriff  or  his  officers,  and  has  the  distress  returned  into  his 
own  possession  ;  upon  giving  good  security  to  try  the  right  of  taking  it  in  a 
Buit  of  law,  and,  if  that  be  determined  against  him,  to  return  the  cattle  or 
goods  once  more  into  the  hands  of  the  distrainor.  This  is  called  a  replevin, 
of  which  more  will  be  said  hereafter.  At  present  I  shall  only  observe,  that, 
as  a  distress  is  at  common  law  only  in  nature  of  a  security  for  the  rent  or 
daraages  done,  a  replevin  answers  the  same  end  to  the  distrainor  as  the  dis- 


14  DISTRESSES.  [  book  3. 

tress  itself;  since  the  party  replevying  gives  security  to  return  the  distress, 
if  the  right  be  determined  against  hiin. 

"  Before  I  quit  this  article,  I  must  observe,  that  the  many  particulars  which 
attend  the  taking  of  a  distress,  make  it  a  hazardous  kind  of  proceeding: 
for,  if  any  one  irregularity  is  committed,  it  vitiates  the  whole,  and  renders 
the  parties  trespassers  ab  inillo  ;  a  rigorous  principle  which  has  been  soften- 
ed in  England  by  a  statute  never  in  force  in  Virginia.  On  the  contrary  it  is 
provided,  1  R.  C.  ch.  11-i,  that  in  case  any  distress  and  sale  shall  be  made, 
under  colour  of  the  act,  for  rent  pretended  to  be  in  arrear  and  due,  where 
in  truth  no  rent  is  in  arrear  or  due  to  the  person  or  persons  distraining,  or  to 
him,  her,  or  them,  in  whose  name  or  names,  or  right,  such  distress  shall  be  ta- 
ken as  aforesaid,  tiien  the  owner  of  the  goods  and  chattels  so  distrained  or 
sold,  his  executors  or  administrators,  shall  have  remedy,  by  action  of  tres- 
pass, or  upon  the  case,  against  the  person  and  persons  so  wrongfully  dis- 
training, or  either  of  them,  his,  her,  or  their  executors  and  administrators, 
and  shall  recover  double  the  value  of  the  goods  and  chattels  so  distrained 
and  sold,  together  with  full  costs  of  suit. 

Observe,  this  section  applies  only  where  there  is  no  rent  due  ;  for  if  one 
cent  be  due,  the  landlord  is  not  within  the  penalty.  Observe,  also,  that  the 
remedy  for  the  wrongful  distress  is  only  by  action  of  trespass,  or  upon  the 
case  ;  and  therefore  there  cannot  be  judgment  under  this  clause  against  the 
landlord  in  an  action  of  replevin.  The  judgment  in  replevin  where  the  ten- 
ant succeeds  in  shewing  that  there  is  not  any  rent  in  arrear,  or  that  the  dis- 
tress is,  for  any  other  cause,  wrongful,  is  for  such  damages  as  a  jury  shall  as- 
sess, together  with  full  costs.  See  Lilly's  Entries,  373,  374.  Where  the 
landlord  succeeds,  the  judgment,  as  has  been  already  said,  is  in  Virginia,  for 
the  arrears  of  rent,  with  interest,  and  damages,  and  costs. 

It  is  material,  also,  to  observe,  that  the  above  action  of  trespass,  or  upon 
the  case,  does  not  abate  by  death,  as  actions  of  tort  generally  do  ;  for  the 
act  above  referred  to  expressly  gives  it  for  and  against  executors  and  admin- 
istrators, as  well  as  for  and  against  the  parties  themselves. 

In  connection  with  this  head  it  may  also  be  proper  to  take  notice  of  cer- 
tain acts  which  do,  and  others  which  do  not,  bar  the  remedy  by  distress,  and 
of  course  render  it  illegal.  Thus,  accejjting  a  note  of  hand,  and  giving  a 
recei[)t  for  the  rent,  does  not,  till  payment,  preclude  the  landlord  from  dis- 
training ;  and  so  if  the  landlord  accept  a  bond,  for  these  are  not  of  higher 
dignity  than  rent  reserved  even  by  parol,  and  are  therefore  no  satisfaction 
till  paid  ;  but  a  judgment,  obtained  on  either  of  such  instruments,  would 

Notes  of  Mr.  Cliilhj  and  Mr.  Christian  : 

It  rrniy  he  as  well  here  to  observe,  that  if  a  landlord  come  into  a  house  and  seize  upon  some  goods 
as  a  dislro-H,  in  ilie  name  of  all  the  noadtf  of  the  house,  that  will  be  a  good  seizure  nf  all.  G  Mod.  215. 
'.I  Vin.  Ab,  l',7.  ISiit  a  fresh  dislrei^s  may  be  made  on  the  same  good.-!,  which  have  been  replevied, 
lor  subsequent  arrears  of  rent.  1  Taunt,  1213,  So  if  the  catlle  dislr. lined  die  in  the  pound,  the  I083 
will  fall  o!i  the  parly  distrained  on,  and  not  upon  the  distrainor.  lUnr.  173S.  1  Salk.  218,   11  EasI,  54. 

It  is  no  bar  to  this  action,  that  between  the  distress  and  sale  of  the  goods  distrained,  the  parties 
ramn  to  an  amntcment  respeciinj;  the  sale;  1  liine-  -101.  4  1).  &,  R.  5;3!l.  21J,  &C.  821,  S.  C. ; 
and  tln!  artioi)  is  sm-lainablc  ihoiiah  ihcre  was  a  lender  of  the  rent  before  the  distress  was  made.  2 
I).  A:  K,  2."y),  Where  more  rent  is  distrained  lor  than  is  due,  the  remedy  is  at  common  law,  and  is 
not  founded  on  the  52  Hen,  11,  r.  4,  nor  on  the  2  \V.  .St  M.  c.  5,  s.  5.  rSira,  f'.5l.  Where  no  rent  is 
due,  the  owner  of  the  U'lrids  rbslrainml  may,  in  an  action  of  trespass  on  the  case,  lecover  double  the 
\jlne  o(  the  t>oo(ls  and  full  costs,    2  W.  &,  .M.  i-ci^s,  J,  c,  5,  s.  5.  Chitty. 

Trover  will  not  lie  w here  the  distress  has  been  merely  irregularly  conducted.  J  II.  Bla.  13.  Nor 
treKpass,  (I  iJurr.  .VJ(J,  Fit/..  !G,  2  Sira.  i;51,  S.  C)  unless  tor  some  act  which  of  itself  mijiht  be  the 
Bubject-malU'r  of  that  form  ol  aclion  ;  an  if  the  distress  were  illegal  in  its  inception,  as  in  bre.iking  an 
outer-door,  iic,  ante  II,  n.,  or  if  the  distrainor  conlinue  too  long  in  possession  after  the  live  days, 
ante  11,  u,,  or  sells  corn  before  it  in  ripe,  <^c,,  '■}  15,  it  A,  470,  or  distrains  afler  a  tender  of  the  rent, 
anie  'J,n,,  nespasiimay  be  siip|Mjrled,  liui  ihotenaut  may  in  these  cases  waive  the  trespass  and  declare 
inca.se,  4  U.  Ac  A,  2<V!.  3  15,  &•.  A.TO,  ;j  Stark,  171,"  1  15,  &  C,  115.  2  0.  iV  11,250.  If  a  party 
pay  money  10  redeem  his  gooils  from  a  wrongful  distress  for  rent,  he  may  afterwards  maintain  tiover 
against  the  pernon  vvho  distr.iined  them;  6  '1'.  R,298;  and  we  have  before  seen  tliatitis  no  bar  to  an 
aclion  for  an  excessive  distress,  that  between  ihc  distress  and  sale  of  the  goods  the  parties  came  to 
an  airangement  re.- petting  the  sale.    1  Bing,  40J.    4  D.  A:  K.  531?.    23  13,  &  C.  pi.  21,  S.  C 

Chiisiian, 


CJIAP.  1.]  REMEDIES  FOR  RENT.  15 

preclude  the  right  of  distress.  See  Bull.  N.  P.  182.  An  agreement  to  take 
interest  on  rent  in  arrcar,  does  not  take  away  the  right  of  distress.  2  Chit, 
R.  245. 

On  the  other  hand,  the  distress  cannot  be  made  till  the  day  after  the  rent 
falls  due,  unless,  indeed,  there  be  any  ngreement  or  local  cnstom  to  the 
contrary.  Gilb.  Dis,  56,  £tc.  Hargrave's  Co.  Litt.  d7,  b.  n.  G.  The  dis- 
tress must  not  be  made  ailer  tender  of  payment  of  the  entire  rent  due.  Ac- 
cording to  8  Co.  147,  a.  Gilb.  Dist.  by  Hunt,  7G,  &c.  3  Stark.  171.  1 
Taunt.  261,  tender  upon  the  land  before  the  distress,  makes  the  distress 
tortious  :  tender  after  the  distress  and  before  the  impounding  makes  the  de- 
tainer, and  not  the  taking,  wrongful  ;  tender  after  the  imi^ounding  makes 
neither  the  one  nor  the  other  wrongful,  but  in  the  case  of  a  distress  for  rent 
upon  the  equity  of  the  2  W.  &  M.  c.  5.,  a  sale  of  the  distress,  after  ten- 
der of  the  rent  and  costs,  would  be  illegal.      Chilty. 

Before  we  quit  the  subject  of  distresses,  I  think  it  advisable  to  lay  before 
the  student  the  other  remedies  which  the  law  has  afforded  for  the  recovery 
of  rent ;  some  of  which,  arising  under  our  own  statutes,  would  find  no  more 
appropriate  place  in  this  course  of  lectures.  We  shall  advert  to  these  re- 
medies. 

First,  in  relation  to  the  parties  to  whom  they  are  given  ;  secondly,  the  par- 
ties against  whom  they  lie  ;  thirdly,  the  nature  of  the  remedies  themselves. 

First.  In  relation  to  the  parties  to  whom  they  are  grven. 

As  to  the  lessor  himself;  it  is  material  to  observe  that  if  he  grants  away 
his  reversion,  he  can  neither  distrain  nor  have  an  action  of  debt,  for  these 
grow  out  of  the  privity  of  estate  which  he  has  destroyed.  3  Co.  23,  a.  1 
Saun.  141,  c.  in  note.     Yet  he  may  have  an  action  of  covenant. 

Executors  and  administrators,  by  the  statute  of  H.  8,  (see  1  Saun.  282,^ 
n.  1,)  and  also  by  our  law,  may  have  an  action  of  debt  for  the  arrearages 
of  rent  which  accrued  in  their  testator's  lifetime,  against  the  tenant,  his- 
executors  or  administrators:  1  R.  C.  ch.  113,  §  23;  and  furthermore  they 
may  distrain  as  he  might  have  done,  and  avow  thereupon  so  long  as  the 
lands  continue  in  the  possession  of  the  tenant,  or  any  person  claiming 
from  him,  either  by  purchase,  gift,  or  descent.  And  it  is  now  further  pro- 
vided, (ibid,  §  30,)  that  the  executors  or  administrators  of  a  person  having 
rent  in  arrear  due  on  a  lease  for  life  or  lives,  for  years  or  at  will,  although 
it  be  determined,  may  distrain  as  the  testator  might  have  done  if  living. 
How  in  such  case  he  might  have  distrained,  will  be  seen  hereafter. 

Executors  and  administrators  have  also  of  course  a  right  to  bring  cove- 
nant for  rent  reserved  by  indenture  or  agreement  sealed  by  the  lessee,  whe- 
ther it  be  for  rent  accrued  in  the  testator's  lifetime,  (which,  as  we  have  seen, 
belongs  to  them,)  or  for  rent  accrued  after  his  death,  where  the  reversion  is 
itself  a  chattel ;  as  where  the  testator  being  tenant  for  fifty  years,  made  an 
under  lease  for  ten  years :  for  in  snch  case,  after  the  testator's  death,  this 
reversion  passed  to  the  executors  or  administrators.  It  became  their  pro- 
perty, and  they  to  all  intents  and  purposes  became  the  landlords.  So  for 
the  same  reason  they  have  in  such  case  a  right  to  distrain  or  bring  cove- 
nant, or  to  re-enter  for  non-payment,  if  there  be  a  clause  of  re-entry  in 
the  lease.  So,  too,  if  the  lease  be  by  parol,  they  may  bring  assumpsit  upon 
an  express  agreement  to  pay  rent,  and  also  upon  an  implied  agreement 
where  the  testator  could  have  done  so,  for  the  yearly  value  of  the  premises. 
For  upon  principles  of  common  law,  as  well  as  by  statute,  executors  may 
sue  and  be  sued  upon  all  contracts  in  writing  of  their  testator,  whether  they 
bo  named  or  not  in  the  writing  evidencing  the  contract ;  and  also  "upon 
all  their /jcrsona/  contracts."     1  R.  C.  ch.  104,  §  62. 

For  the  security  of  landlords  against  fraudulent  acts  of  tenants  who 
might  remove  their  property  from  the  premises  and  from  the  county  be- 


16  REMEDIES  FOR  RENT.  [  book  3. 

fore  the  rent  bccarrre  due,  (the  landlord  having  no  remedy  at  common  law 
until  pay-day,)  the  act  has  provided  a  remedy  by  attachment,  which,  under 
circumstances,  is  authorized  to  be  issued  before  the  day  of  pavment.  1  R. 
C.  ch.  113,  §9,  10.  Sess.  acts,  passed  January  1,  I8-20.  1  R.  C.  page 
opposite  to  the  errata.  This  remedy  may  be  resorted  to  by  executors  or 
administrators  in  the  character  ol"  landlords,  where  a  reversionary  chattel 
comes  to  them  as  above  stated.  So  wiiere  they  are  ihe  owners  of  a  lease 
for  years,  and  underlet  the  land,  reserving  rent,  for  in  both  these  cases  they 
are  landlords,  and  come  within  the  express  meaning  of  the  act.  But  it  is 
sufficiently  obvious  that  it  has  no  application  to  their  right  to  a  rent  which 
accrued  on  a  lease  by  the  owner  of  a  fee  :  for,  as  has  been  seen,  they  can 
have  no  right  to  any  such  rent,  except  such  as  was  due  in  the  testator's  life- 
time, and  to  a  rent  already  due,  the  attachment  law  is  neither  necessary 
nor  applicable. 

Heirs. — The  persons  in  relation  to  whom  we  shall  next  consider  the  re- 
medy by  distress,  are  the  heirs  of  the  lessor  or  former  landlord.  And  as 
to  them  this  general  remark  may  be  made,  that  where  the  reversion  with 
the  rent  incident  thereto,  descends  upon  them,  they  are  in  effect  ihe  land- 
lords;  and  all  the  rights  and  remedies  of  their  ancestor  (not  omitting  the 
remedy  by  attachment  which  has  been  mentioned)  are  immediately  vested 
in  them.  But  it  is  important  here  to  advert  to  the  descent  of  a  reversion 
to  parceners  in  England,  and  to  the  heirs  here,  who,  whether  male  or  fe- 
male, take  in  parcenary.  In  respect  to  their  ancestor  they  are  considered 
as  making  but  one  heir ;  Co.  Litt.  161  ;  and  therefore,  before  partition,  al- 
though their  inheritances  are  several,  yet  one  cannot  make  avowry  for  his 
or  her  proportion  of  the  rent  alone  ;  5  Mod.  141.  Carlh.  364.  Lord  Ray. 
61;  but  in  such  case  he  or  she  should  avow  in  her  own  right,  and  as  bailiff 
of  his  or  her  coparcener,  for  the  entire  rent.     Salk.  390.     Bac.  Coparc.  B. 

Husband  in  right  of  his  wife.  The  rights  of  the  husband  to  rents  be- 
longing to  his  wife,  depend  upon  principles  which  have  been  already  fully 
exammed  and  developed.  So  far  as  respects  rents  incident  to  reversions, 
and  not  due  and  in  arrear  during  the  wife's  life,  he  will,  after  her  death,  be 
entitled  to  them  or  not,  according  as  he  is  entitled  to  the  reversion  or  not: 
and  where  he  is  entitled,  he  has  all  the  rights  of  landlord.  As  respects 
those  rents  which  are  due  and  unpaid  at  his  wife's  death,  if  they  were  inci- 
dent to  a  reversion,  in  fee  or  for  life,  it  is  provided  by  statute  that  the  hus- 
band, his  executors  or  administrators,  shall  have  an  action  of  debt  for  the 
arrearages,,  and  n'ay  likewise  distrain  and  avow  as  if  his  wife  were  living. 
1  R.  C.  ch.  1 13,  §  '2d.  During  the  wife's  life,  the  husband  has  in  her  right 
all  the  remedies  which  landlords  usually  have,  whether  she  be  the  owner  of 
a  reversion  in  fee,  or  for  life,  or  years,  to  which  the  rent  is  incident  :  and 
where  he  distrains  for  rent  due  before  or  after  marriage,  he  may  avow  alone, 
setting  out  the  truth  of  the  case,  and  that  the  rent  was  due  to  him  and  hia 
wife,  and  aver  that  she  is  living,  whereby  he  hatli  right  to  demand  and  have 
the  rent^^  Bac.  Replevin,  K.^  1  Sann.  197.  Chilty,  6-2.  Cro.  Ja.  44->. 
1  Esp.  375.  See  Bac.  Bar.  &  Feme,  K.  The  better  opinion,  indeed,  would 
Beem  to  be,  that  where  the  rent  accrues  after  marriage,  the  v.'ife  cannot  join 
in  avowry ;  and  this  is  in  analogy  to  the  established  principle  in  other  cases. 
Sec  2  Saiin.  47. 

Where  rent  is  due  to  the  wife  before  marriage,  it  is  a  chose  in  action,  and 
governod  by  the  law  a[)plicable  thereto,  whatever  may  be  the  character  of 
the  reversion,  whether  realty  or  a  chattel  interest.  Where  it  becomes  due 
after  the  marriage,  it  becomes  at  once,  in  the  case  of  the  reversion  being  a 
chattel  interest,  a  debt  dnv.  to  the  husband,  as  I  conceive,  and  survives  to 
him  if  his  wife  dies  before  him,  and  goes  to  his  representatives  if  he  dies 
first.     The  case  of  a  reversion  in  fee  is  provided  for  by  statutCj  as  I  ha\'« 


CHAP. 


1]  REMEDIES  FOR  RENT.  17 


said.     In  all  these  cases,  during  the  coverture  he  may,  and  it  would  seem! 
ought  to,  sue  and  avow  alone. 

Assignees  of  the  reversion  or  of  rent.  The  better  opinion  seems  to  be, 
that  at  common  law  an  assignee  might  bring  an  action  of  debt  for  rent  in' 
arrear,  (1  Saun.  241,  c.  in  note  ;  5  Barn.  &  Cres.  512.  11  C.  L.  R.  292,) 
but  that  he  was  incapable  of  maintaining  an  action  of  covenant  until  the 
statute  32  H.  VIll.  ch.  34,  from  which  our  act  is  taken.  3  Mod.  338.  1 
Wils.  165.  3  T.  R.  401.  1  Saund.  240,  n.  3.  By  that  act  ihe  grantees 
or  assignees  of  a  reversion,  and  their  heirs,  executors,  administrators,  and 
assigns,  shall  have  the  same  remedy  against  the  lessees,  their  executors, 
administraters,  and  assigns,  by  entry,  for  non-payment  of  rent,  or  for  waste 
or  other  forfeiture,  and  the  same  benefit  of  the  covenants  and  agreements 
in  the  lease,  &.c.  as  the  lessors  themselves  or  their  heirs  might  have  had 
against  the  lessees,  their  heirs,  executors,  administrators,  or  assigns.  1  R. 
C.  ch.  113,  §  26. 

Under  the  above  mentioned  statute  of  Hen.  VIII.  from  which  ours  has 
been  taken,  it  has  been  decided  that  the  statute  transferred  the  privity  of 
contract  to  the  assignee  of  the  reversion  in  the  same  manner  as  the  lessor 
had  it.  1  Saund.  240.  3  Mod.  337,  338.  1  Show.  199.  Carth.  182, 
cited  in  n.  1  Saund.  241,  c.  And  while,  on  the  one  hand,  the  assignor 
cannot  distrain  for  rent  due  before  the  assignment,  because  he  has  parted 
with  the  reversion  ;  so,  on  the  other,  it  seems  he  cannot  bring  an  action  of 
covenant  after  he  has  parted  with  the  reversion,  for  any  breach  of  covenant 
accrued  subsequent  to  the  grant  thereof;  for  the  statute  has  transferred  the 
privity  of  contract,  together  with  the  estate  in  the  land,  to  the  assignee  of 
the  reversion.  See  1  Lev.  154,  cited  1  Saun.  241,  c.  in  note.  But  yet  I 
apprehend  that  in  the  case  of  rent  in  arrear  at  the  time  of  the  assignment, 
as  it  does  not' pass  to  the  assignee,  it  may  be  recovered  by  the  assignor  by 
covenant,  but  not  in  action  of  debt;  and  this  even  though  it  be  not  reserved 
on  tlie  grant  of  a  fee  for  which  debt  will  not  lie  ;  for  the  action  of  debt  is 
only  given  by  reason  of  the  privity  of  estate  which  the  lessor  has  himself  de- 
stroyed. 3  Co.  23.  See  1  Saun.  211,  c.  in  note.  Debt,  however,  now  lies 
for  a  rent  if  reserved  on  a  lease  for  life  or  lives.  Bac.  Rents,  K,  6.  1  R. 
C.  ch.  113,  §  19. 

I  am  not  aware  that  there  is  any  difference  in  the  cases  of  an  assignee 
by  act  of  the  parties,  and  an  assignee  by  act  of  law,  as  tenant  by  elegit,  or 
the  purchaser  of  a  reversion  in  a  chattel  interest  sold  under  an  execution. 

Joint-tenants,  as  well  as  coparceners,  are  to  join  in  an  avowry  for  rent, 
for  they  have  at  common  law  but  one  title  ;   Lord  Ray.  64;  but 

Tenants  in  common  must  sever  in  their  avowries,  for  they  are  in  by  several 
titles.     Ibid.     Bac.  Replevin,  K. 

We  come  next  to  consider  the  remedies  given  by  law  in  relation  to  the 
persons  against  whom  they  may  be  used. 

And  here  we  may  pursue  the  same  course  as  under  the  last  head,  con- 
sidering the  several  parties  in  succession. 

Executors  and  Administrators.  It  is,  as  I  have  already  said,  a  general 
rule,  that  where  the  testator  is  chargeable  on  a  personal  contract,  his  exe- 
cutors and  administrators  are  chargeable  after  his  death,  whether  they  be 
named  or  not  named  in  the  contract.  This  responsibility  is  yet  more  ex- 
plicitly declared  in  certain  cases  of  rents.  1  R.  C.  ch.  113,  §  28,  29,  30. 
So  that  it  may  be  laid  down  as  a  general  rule,  that  where  the  tenant  dies, 
his  executors  and  administrators  are  responsible  so  far  forth  as  he  was  him- 
self liable.  The  liability  of  the  tenant  himself  is  in  the  general  sufficiently 
obvious,  but  it  is  important  to  ascertain  how  far  his,  and  of  course  his  exe- 
cu-tors'  and  administrators'  liability  is  removed  by  the  assignment  of  the' 
Vol.  2—3 


18  REMEDIES  FOR  RENT.  [  book  3. 

lease  by  the  tenant,  accompanied  by  an  acceptance,  by  the  lessor,  of  the 
assignee  as  tenant. 

The  tenant  himse}/ crinnot,  it  is  obvious,  by  las  own  mere  act,  absolve 
himself  from  responsibiHty  by  assigning  his  term,  for  tliis  would  be  to  ena- 
ble him  to  pass  it  to  some  insolvent  person  who  would  be  incapable  of  pay- 
ing the  rents.  3  Co.  2*2.  Hence,  though  the  lessee  assign  over  his  term, 
the  lessor  may  refuse  to  accept  the  assignee  as  his  tenant,  and  may  sue  the 
lessee  for  the  rent  and  for  breaches  of  the  covenants;  1  Wash.  57 ;  and  in 
the  event  of  his  death,  may  in  like  manner  pursue  his  executors  and  admi- 
nistrators.    1  Saun.  241,  in  note.     3  Mod.  32G. 

But  if  the  tenant  transfers  the  whole  of  his  term,  which  alone  amounts 
to  an  assignment,  and  the  landlord  accepts  of  the  assignee  as  his  tenant, 
by  receiving  rent  from  him,  then  these  distinctions  are  to  be  noted. 

The  lessor  by  such  acceptance  discharges  his  own  lessee  from  an  action 
of  debt  or  distress  for  the  arrears  of  rent,  for  these  grow  out  of  the  privity 
of  estate  which  is  gone  by  the  acceptance  of  a  new  tenant.  Cro.  Ja.  334. 
Esp.  291.     1  Saun.  241,  c.  in  note. 

But  though  the  action  of  debt  and  the  distress  are  gone,  the  lessor,  where 
the  lease  is  by  indenture,  may  nevertheless  bring  an  action  of  covenant 
against  the  first  lessee  for  the  breach  of  any  express  covenant,  though  com- 
mitted by  the  assignee  after  the  assignment :  and  this  is  by  reason  of  the 
privity  of  contract  which  still  continues  as  to  the  lessor,  because  it  has  not 
been  destroyed  by  any  act  of  his,  since  the  acceptance  of  the  rent  does  not 
operate  to  traiisfer  it.  Cro.  Ja.  309.  Cro.  ch.  418.  Esp.  291.  Bac. 
Cov.  535,  530. 

But  the  action  of  covenant  lies  against  the  lessee  after  assignment  and 
acceptance  of  the  assignee  as  tenant,  only  upon  express  covenants.  For  it 
seems  to  me  that  the  implied  covenants  are  raised  by  the  law  by  reason  of 
the  privity  of  estate,  and  not  of  contract;  and  as  by  the  acceptance  the 
lessor  has  assented  to  the  destruction  of  the  privity  of  estate,  the  lessor 
shall  not  have  the  action  which  grew  out  of  it.  Therefore,  the  covenant 
for  non-payment  of  rent  will  lie  against  the  lessee  after  assignment  and  ac- 
ceptance of  assignee  as  tenant,  where  there  are  express  words  binding  the 
lessee  and  his  assigns  to  pay  the  rent,  (3  Lev.  233,)  yet  where  there  is  only 
a  covenant  in  law  for  payment  of  rent,  such  as  is  implied  from  the  words 
yielding  and  payinf^,  (hmise  and  grant,  (which  are  covenants  in  law  both 
by  the  lessor  and  lessee,  1  Saun.  241,  b.  in  note,)  no  action  of  covenant 
will  lie  after  assignment  and  acceptance.  1  Sid.  447.  Sir  W.  Jones,  223. 
4  T.  R.  98.     1  Saun.  241,  b.  in  note.     Cro.  ch.  188. 

These  distinctions  equally  hold  against  the  executors  and  administrators* 
of  the  lessee  for  years.      1  Saun.  241,  a.  in  note.     But 

The  assignee  of  the  term,  whether  by  act  of  law  or  of  the  parties,  stands 
in  a  very  dilfercnt  situation  ;  for  in  leases,  the  lessee  being  a  party  to  the 
original  contract,  continues  always  liable  under  his  express  covenants,  not- 
Avillistanding  any  assignment:  but  the  assignee  is  only  liable  in  respect  of 
his  possession  of  the  tiling.  l\v.  bears  the  burden  while  he  enjoys  the  be- 
nefit, and  no  longer.  Doug.  [413.]  Lev.  215.  Lord  Kay.  308.  Salk.  81. 
He  is  liable,  indeed,  after  assignment  over,  for  the  rent  which  accrued  dur- 
ing his  enjoyment ;  but  in  covenant  for  non-payment  of  rent,  he  may  plead 
that  before  tluj  rent  was  due  and  payable,  he  assigned  to  another,  and  this 
is  a  good  plea  without  an  allegation  that  the  lessor  accepted  that  other  as 
tenant.  Cartli.  177.  Salk.  80.  4  Mod.  71.  3  Lev.  295.  But  while  he 
retains  possession  he  is  liable  to  the  action  of  the  lessor  in  debt  or  in  cove- 

*SeeGill).on  Renin,  3V7,  where  it  i«  remarkprl  ilmt  llie  statute  of  Anno,  which  is  the  original  of 
our  act,  I  K.  C  cli.  113,  ^\  19,  hx^  not,  by  express  wonis,  eiven  an  action  lo  the  executors  of  lessor 
for  rent  in  arrear  upon  lijases  for  lives;  hut  thai  case  in  in  efitecl  provided  for  by  the  26lli  eection  of 
the ac*,  1  R.  C.  ch.  il3,  concpjionding  with  the  '■ii  H.  8. 


CHAP.  1.]  REMEDIES  FOR  RENT.  !§ 

nant  for  rent,  or  for  not  repairing,  &c.  and  this  by  reasoii  of  the  privity  of 
estate.     3  Rep.  22,  b.     1  Saun.  241,  c.  in  note. 

It  is  not  my  purpose  here  to  go  at  large  into  the  distinctions  respecting 
the  assignee's  liability  to  the  various  covenants  in  the  lease ;  as  they  will 
more  properly  be  enquired  into  hereafter.  It  is  suflicicnt  here  to  have  shewn 
how  far  he  is  liable  to  the  lessor  for  the  rent,  and  we  must  remember  that 
he  is  in  like  manner  liable  to  the  assignee  of  the  reversion  in  covenant  or 
debt,  or  by  distress,  by  the  operation  of  the  statute  before  cited.  See  1 
Saun.  241,  b.  c.  in  note. 

It  is  necessary,  however,  to  advert  to  the  distinction  between  an  assignee 
who  ex  vi  termini  has  the  assignment  of  the  whole  term,  and  a  derivative 
lessee  (who  has  transferred  to  him)  the  leased  premises  for  a  less  number  of 
years  than  that  for  which  the  original  lessee  held  :  for  such  derivative  les- 
see is  not  in  any  wise  liable,  for  the  rent  reserved,  to  the  original  lessor,  ex- 
cept so  far  as  his  cattle  are  liable  to  distress  as  other  strangers'  cattle  are ; 
Bac.  Leases,  1,  3  ;  nay,  not  even  though  he  take  the  whole  term  save  one 
day.  And  since  the  statute  which  exempts  from  distress  the  property  of  all 
persons  other  than  the  tenant  or  such  as  are  liable  for  the  payment  of  the 
rent  or  some  part  thereof,  it  would  seem  that  even  the  remedy  by  distress 
was  gone,  so  far  as  respects  his  goods.  Hence  it  is  the  more  necessary  to 
introduce  into  leases  clauses  against  underletting,  or  subtenancy. 

The  heir  is  liable  of  course  in  the  case  of  a  reservation  of  a  rent  on  a 
feoffment  in  fee,  or  the  grant  of  a  rent  by  the  owner  of  a  fee  ;  for  upon  the 
descent  of  the  land  to  the  heir,  he  becomes  tenant,  and  by  reason  both  of 
his  privity  of  estate  and  the  privity  of  contract  made  with  his  ancestor,  he 
is  liable. 

The  remedies. — Let  us  now  consider  the  remedies  themselves  which  are 
afforded  by  the  law. 

The  first  is  the  action  of  covenant,  which  has  this  advantage,  not  only 
that  it  will  lie  where  others  do  not,  but  that  the  statute  of  limitations  is  no 
bar  to  the  recovery.  Thus  it  will  lie  for  a  rent  reserved  on  the  grant  of  a 
freehold,  or  even  a  fee  simple,  which  at  common  law  was  not  the  case  with 
the  action  of  debt,  (Co.  Lit.  162.  4  Co.  45,)  and  is  not  now  the  case  as 
to  an  action  of  debt  for  rent  reserved  on  a  fee,  as  that  is  not  within  the 
provisions  of  the  statute.  1  R.  C.  ch.  113,  §  19.  So,  as  we  have  seen,  it 
will  be  in  some  cases  against  the  assignor  where  the  debt  will  not  lie,  and 
where  the  remedy  by  distress  is  also  gone.  It  is  therefore,  perhaps,  the 
best  remedy,  except  where  the  expeditious  mode  of  distress  is  required  by 
the  urgency  of  the  case,  and  is  appropriate  to  it. 

Secondly.  The  action  of  debt  for  rent  lay  in  many  cases  at  the  common 
law,  and  is,  as  we  have  seen,  now  given  in  others.  It  did  not,  however,  at 
common  law,  lie  for  the  arrears  of  a  freehold  rent,  as  I  have  stated  above, 
until  after  the  determination  of  the  life  estate,  in  case  of  a  lease  for  life. 
Gilb.  on  Act.  of  Debt,  372.  Co.  Lit.  162,  a.  In  that  case,  the  sum  due 
became  a  personal  charge,  and  the  debt  therefore  would  lie.  And  now,  by 
the  act  of  assembly  above  cited,  it  is  provided  that  any  person  having  any 
rent  in  arrear  or  due  upon  any  lease  or  demise  for  life  or  lives,  may  bring 
an  action  of  debt  for  such  arrears  of  rent  in  the  same  manner  as  if  it  was 
reserved  on  a  lease  for  years  ;  I  R.  C.  ch.  113,  §  19;  for  debt  always  lay 
for  rent  reserved  upon  leases  for  years,  as  also  for  arrears  of  rent  on  a  lease 
at  will.  Litt.  §  59,  72.  But  it  did  not  lie  against  tenants  by  sufferance, 
for  the  action  of  debt  implies  a  contract,  whereas  tenants  by  sufferance 
hold  over  by  wrong.     I  Esp.  187. 

The  student  is  referred  to  Gilbert's  treatise  on  the  action  of  debt,  where 
the  whole  doctrine  of  debt  for  rent  is  treated  in  the  usually  able  and  perspi- 
cuous manner  of  that  author. 


20  REMEDIES  FOR  RENT.  [  BOOK  3. 

The  remedy  by  assumpsit  for  rent  lies  upon  a  parol  lease,  whether  oral 
or  written,  where  there  is  an  express  contract  to  pay  the  rent;  for  upon 
every  express  contract  not  evidenced  by  indenture  or  deed  under  seal,  as- 
sumpsit  lies. 

Such  cases  occur  more  frequently  among  us  than  the  action  of  debt, 
though  that  action  lies  not  less  upon  a  parol  lease  than  upon  a  lease  by  in- 
denture ;  for  it  is  given  by  reason  of  the  privity  of  estate.  Moreover,  debt 
-will  always  lie  upon  simple  contracts,  where  the  amount  is  ascertained, 
with  a  few  exceptions,  which  will  be  noticed  in  the  course  of  this  work. 
•Slade's  case,  4  Co.  94. 

It  is  material,  however,  here  to  advert  to  the  question  once  held  doubtful 
but  now  settled,  how  far  the  action  of  assumpsit  will  lie  for  the  use  and  oc- 
cupation of  land  where  there  is  no  express  promise  or  contract  for  payment 
of  rent,  or  where,  if  there  was  any  promise,  it  was  indefinite  as  to  amount. 
Mr.  Espinasse  says  (1  Xi.  Pri.  20.)  that  the  action  for  use  and  occupation 
was  given  by  the  statute  11  Geo.  II.  ch.  10 ;  and  that  statute  never  was  in 
force  here.  But  Judge  Buller  says  (Bull.  Ni.  Pri.  pa.  1-38,)  that  an  action 
at  common  law  would  lie  on  an  express  promise,  but  not  on  an  implied 
promise,  though  he  afterwards  decided  that  it  lay  in  either  case.  I  T.  R. 
387.  Waiving  a  minute  examination  of  the  grounds  of  these  opinions, 
suffice  it  to  say  that  it  is  now  settled  that  assumpsit  for  use  and  occupation 
of  land  by  the  assent  and  permission  of  the  plaintiff,  lies  either  on  an  ex- 
press or  implied  promise,  and  whether  a  certain  sum  be  (in  the  case  of  an 
express  promise)  agreed  on  or  not.  4  Hen.  &,  Mun.  161.  1  Mun.  407. 
In  the  case  of  implied  promise,  the  declaration  states  a  promise  of  the  de- 
fendant to  pay  so  much  as  the  landlord  reasonably  deserved  to  have  for  such 
permission,  which  promise  the  law  implies;  See  3  Woodes,  152;  for  as 
there  is  no  certain  rent  reserved,  the  plaintiff  could  neither  distrain  nor 
bring  an  action  of  debt;  and  yet  as  it  is  obvious  that  it  must  have  been  the 
understanding  of  the  parties  that  the  tenant  should  not  hold  the  landlord's 
property  by  his  permission  for  nothing,  so  the  law  on  this,  as  on  various 
other  occat^ions,  implies  or  presumes  that  the  defendant  did  that  which  com- 
mon justice  required  ;  that  is,  did  promise  to  pay  a  reasonable  rent.  But 
we  must  not  omit  to  observe  that  the  assent  or  permission  of  the  landlord 
forms  a  term  in  the  proposition  ;  for  without  it  the  holder  is  a  wrongdoer, 
and  a  contract  cannot  be  implied  out  of  a  wrong,  but  the  party  injured  must 
pursue  the  appropriate  remedy  prescribed  by  law.  1  T.  R.  378.  2  H.  B. 
320.* 

The  next  remedies  I  shall  speak  of,  are  the  summary  remedies  given  by 
the  law,  to  wit,  attachments,  distress,  and  re-entry.  The  first  of  these  is 
given  to  the  landlord  by  acts  of  assembly,  and  is  provided  to  prevent  the 
fraudulent  removals  of  tenants  with  their  property,  before  the  rent  becomes 
due.  The  acts  provide  (1  R.  C.  ch.  113,  §9,  also  act  January  1,  1820,  in- 
serted 1  R.  C.  opposite  to  the  errata,)  that  where  any  landlord  or  lessor  or 
his  agent  shall  have  sufficient  grounds  to  suspect  that  his  tenant  will  re- 
move his  eflccts  from  the  leased  tenement  before  the  time  of  payment,  and 
shall,  before  any  justice  of  the  peace  of  the  county  or  corporation  where 
the  leased  lands  lie,  make  oath  thereto,  as  also  to  the  amount  of  the  rent 
that  is  to  be  j)riid,  and  the  timo  of  payment,  the  justice  shall  issue  an  attach- 
ment against  the  goods  and  chnttels  of  the  tenant,  returnable  to  his  next 
county  or  corporation  court.     If  the  tenant  does  not,  upon  the  levy  of  the 

'  See  I5ook  2,  page  23.  in  note,  and  (he  nutlioriiics  ihere  cited.  From  these  1  infer  lli.it  tlie  action 
upon  the  promine,  wlieiher  express  or  implied,  doc':<  not  lie  where  there  is  a  lease.  But  where  ihe 
parties  agree  for  a  lease  which  is  not  tnade,  or  the  lescee  is  put  into  posgcsgion  upon  an  express  pro- 
mise to  pay  a  certain  rent,  with  an  underslandiiii;  that  the  terms  of"  the  lease  as  to  other  matters  shall 
be  afiTwards  adjufied,  ascumpfil  lies.  See  Green  va.  ilarrington,  lirowidow's  Reports,  14.  Hotj. 
2?4.  In  liriggsj-v.  Hale,  which  will  probahlv  appear  in  .'jth  Leigh,  these  questions  were  much  con- 
sidered    Bee  also  2  Taun.  J43.    5  Jjani.  &  AW.  3i.'.    VS  East,  19. 


CHAP.  1.]  REMEDIES  FOR  RENT.  21 

attachment,  or  before,  or  at  the  said  next  court,  enter  into  recognizance 
with  one  or  more  sufficient  securities  for  payment  of  the  rent  when  it  becomes 
due,  the  court  shall  order  a  sale  for  money  or  tobacco,  (according  to  the 
character  of  the  reservation,)  payable  at  the  time  the  rent  shall  become  due, 
the  purchasers  giving  security  for  payment ;  and  so  many  of  the  bonds  shall 
be  assigned  to  the  landlord  as  are  adequate  thereto  ;  and  the  overplus,  after 
deducting  the  charges  of  attachment  and  sale,  shall  be  returned  to  the  own- 
er. A  like  remedy  is  given  within  thirty  days,  where  the  tenant  has  actu- 
ally removed  his  effects,  and  has  hot  left  sufficient  distress  upon  the  pre- 
mises. 1  R.  C.  ch.  113,  §  10.  Sess.  acts,  1822,  ch.  29,  §  1.  And  where 
the  rent  reserved  is,  as  is  very  usual,  payable  in  wheat,  corn,  &c.  the  same 
act  provides  for  ascertaining  the  value  thereof  in  money,  and  the  order  of 
sale  issues  for  such  value  accordingly.     1  R.  C.  ch.  113,  §  12,  13. 

On  these  provisions  these  remarks  are  material  to  be  made  ; — 1.  That 
the  remedies  here  given  are  summary  proceedings  unknown  to  the  common 
law,  and  therefore  the  strict  letter  of  the  statute  ought  in  all  cases  to  be  ad- 
hered to.  This  rule  particularly  applies  where  the  remedy  is  susceptible  of 
abuse,  and  of  being  converted  into  an  instrument  of  oppression,  which 
seems  to  be  particularly  the  character  of  attachments.  3  Call.  415,  416. 
2  H.  &  M.  48,  308. 

2.  It  is  to  be  observed  that  the  act  of  assembly  has  not  provided  for  a 
summary  judgment  on  such  bonds  against  the  purchasers  of  the  attached 
effects,  nor  upon  the  defendant's  recognizance,  if  he  should  enter  into  one, 
in  order  to  recover  possession  of  his  property  under  the  law.  On  these, 
therefore,  the  landlord  must  pursue  the  usual,  but  slow  redress  of  the  law, 
to  wit,  a  scire  facias  on  the  recognizance,  or  an  action  of  debt  on  the  sale 
bonds.  This  was  probably  an  oversight  in  the  legislature,  as  their  general 
policy  has  been  in  such  cases  to  give  a  right  to  judgment  and  execution 
upon  short  notice. 

3.  The  provisions  of  the  attachment  law  allowing  any  person  claiming 
the  property  attached  to  interplead,  do  not  extend  to  attachments  for  rent, 
so  that  in  such  case  the  party  claiming  must  resort  to  the  ordinary  remedies. 
1  R.  C.  ch.  113,  §  12.    Gil.  142. 

The  last  summary  remedy  for  non-payment  to  which  I  shall  advert,  is  the 
right  of  entry,  which  is  a  remedy,  as  we  have  seen  elsewhere,  that  can  only 
be  reserved  to  or  enjoyed  by  the  lessor,  feoffor,  donor,  or  their  heirs,  (or 
assigns  by  virtue  of  the  statute.) 

To  the  assertion  of  this  remedy  a  previous  demand  is  essential,  and  here- 
in there  is  a  difference  between  re-entry  and  distress  :  for  in  the  latter  no 
demand  is  generally  necessary,  though  we  shall  see  that  the  rule  has  its 
modifications.  But  as  to  re-entry  for  nonrpayment  of  rent  reserved  upon 
a  freehold  or  lease,  for  years,  there  must  be  a  demand  made  previously,  oth- 
erwise it  is  tortious  to  enter:  for  the  condition  of  re-entry  is  in  derogation 
of  the  grant,  and  the  estate,  if  once  defeated  by  re-entry,  can  never  be  re- 
stored by  subsequent  payment :  wherefore  it  is  reasonable  that  the  tenant's 
default  shall  be  clearly  ascertained  by  a  demand  and  refusal  or  failure  to  pay  : 
without  such  demand,  indeed,  it  cannot  be  known  that  he  was  7iot  ready, 
since  he  is  not  obliged  to  go  off  the  land  in  search  of  the  landlord.  Co. 
Litt.  201.  The  demand,  indeed,  may  be  dispensed  with  by  express  agree- 
ment of  the  tenant,  who  thereby  puts  himself  voluntarily  under  the  neces- 
sity of  proving  that  he  was  ready  to  tender  and  pay  the  rent  at  the  day. 
Dyer,  6S.  2  Barn.  &  Cres.  490.'  9  C.  L.  R.  158.  There  is,  moreover,  a 
distinction  between  a  condition  of  re-entry  and  a  limitation  ;  as  where  te- 
nant for  life  with  power  to  make  leases  for  twenty-one  years,  so  long  as  the 
lessee,  his  executors,  and  assigns,  duly  paid  the  rent,  leased  accordingly. 


22  REMEDIES  FOR  RENT.  [book  3. 

This  was  considered  a  limitation,  and  the  estate  ceased  on  failure  to  pay 
without  demand.     Vaughan,  31,  32. 

Leases,  indeed,  sometimes  provide  that  if  the  rent  be  behind,  they  shall 
be  void  for  non-payment.  See  1  Bac.  App.  C93.  This  can  only  be  in  the 
case  of  a  lease  less  than  a  freehold ;  for  such  a  provision  would  be  ineffec- 
tual in  the  grant  of  a  freehold  lease.  For  as  the  freehold  estate  passes  only 
by  livery,  or  by  what  the  law  considers  equivalent,  so  it  cannot  be  defeated 
but  by  the  public  and  notorious  act  of  entry.  But  leases  for  years  may  be 
declared  void  upon  condition,  and  if  the  event  happens  on  which  the  lease 
is  agreed  to  be  void,  it  is  ipso  facto  void  accordingly.  Hence,  it  seems  to 
be  thought  most  adviseable  in  leases  for  years,  to  reserve  a  power  of  re- 
entry rather  than  declare  the  lease  void,  since  the  former  leaves  it  to  the  op- 
tion of  the  landlord  to  avoid  it  or  not.     Bac.  Rents,  I.  1. 

As  to  the  demand  to  be  made,  to  entitle  the  landlord  to  re-enter,  the  time 
and  place  are  material. 

The  time  of  demand  of  the  rent  is  the  day  fixed  and  appointed  by  the 
contract  for  payment,  and  the  demand  must  be  made  in  such  convenient 
time  before  sunset  of  that  day,  as  will  be  suilicient  to  have  the  money  coun- 
ted. Plow.  17:2,  173.  10  Rep.  129,  a.  Co.  Litt.  202,  a.  and  Margrave's 
fiote.  1  Saun.  287,  a.  note  16.  But  if  the  tenant  meet  the  landlord  on  or 
off  the  land  at  any  time  during  that  day,  he  may  make  a  tender,  and  the 
tender  is  good,  since  the  money  is  payable  indefinitely  on  that  day  ;  Co. 
jLitt.  201,  b.  202,  a.  7  Rep.  28.  7  T.R.  117.  Saun.  ubi  supra;  if,  how- 
ever, particular  hours  of  the  day  of  payment  are  prescribed  by  the  parties, 
the  contract  herein  must  be  pursued.  Cro.  Eliz.  15.  The  demand  may  be 
made  by  attorney,  though  the  power  should  be  special.  It  must  be  proved 
by  witnesses,  and  ought  to  be  of  the  precise  sum  due  ;  and  if  the  demand 
be  of  a  penny  too  much  or  too  little,  it  will  be  ill;  Leon.  179;  nor  can 
the  strictness  of  the  law  herein  be  condemned,  since  it  is  hard  that  a  poor 
tenant  should  forfeit  his  whole  estate  because  he  is  unable  to  pay  his  rent 
at  the  precise  moment :  and  though  the  law  with  scrupulous  exactness 
gives  to  the  landlord  his  right,  yet  as  he  demands  the  penalty  of  his  bond 
like  the  Jew  in  the  drama,  he  must  take  care  to  be  as  accurate  and  precise 
in  his  demands  from  others,  as  he  expects  them  to  be  exact  in  their  perform- 
ance to  him. 

An  erpial  strictness,  for  the  same  reason,  is  prescribed  as  to  the  place  of 
demand  ;  for  though  a  demand  any  where  upon  the  land  will  suflice,  to 
justify  a  distress  for  rent,  yet  to  enable  a  landlord  to  take  advantage  of  a 
condition  of  re-entry,  the  demand  must  be  made  upon  the  most  notorious 
place  on  the  land  ;  Co.  Litt.  153,  201  ;  as  if  there  be  a  house  on  the  land, 
the  demand  must  be  at  the  front  door  thereof,  though  it  is  neither  necessa- 
ry nor  proper  to  enter  the  house  without  permission  :  as  the  house  is,  in 
English  law,  to  many  purposes  held  sacred.  If  there  are  two  places,  at 
either  of  which  payment  may  be  made,  the  demand  must  be  made  at  both  ;  and 
so  if  there  be  a  lease  of  two  barns, — for  both  are  equally  proper  as  places 
of  payment ;  and  to  save  the  penalty,  the  law  gives  the  tenant  the  election 
at  which  to  be  ready  to  make  it :  therefore,  lest  he  should  miss  of  him,  the 
landlord  must  be  at  both  to  demand  :  for  we  must  bear  in  mind  that  the  ob- 
ject of  the  demand  is  to  fix  conclusively  a  default  on  ihe  tenantj  which  the 
landlord  must  do  to  defeat  the  estate. 

It  is  essential  that  the  demand  should  be  made  upon  the  land,  unless 
another  place  is  ap])ointc(l  for  pavmfiit,  in  which  case  it  must  be  made  at 
such  place.     Co.  Litt.  201,  202.  '  7  T.  11.  117.     1  Saun.  267,  a.  n.  IG. 

If,  after  these  previous  stej)s  have  been  duly  taken  by  the  landlord,  the 
tenant  neglects  or  refuses  to  pay,  the  reversioner  is  entitled  to  enter.  No 
actual  entry  is  necessary,  but  the  demand  is  sufficient  to  enable  him  to  bring 


CHAP.  1.]  REMEDIES  FOR  RENT.  23 

an  ejectment;  3  Bur.  189G.  Si  S nun.  ubi  supra ;  for  by  it  he  evinces  his 
election  to  determine  the  estate,  which  he  might  have  waived  doing,  as  has 
already  been  said  ;  and  an  acceptance  of  rent  by  the  landlord  after  the 
lease  has  been  forfeited,  has  been  held  to  be  a  waiver ;  for  the  forfeiture  is 
a  penalty,  and  by  accepting  the  rent,  the  penalty  is  waived.  Bull.  96. 
Cow.  247. 

The  acceptance  of  rent;  however,  after  a  forfeiture,  is  an  equivocal  act, 
and  may  or  may  not  amount  to  a  waiver  of  the  forfeiture,  according  to  the 
quo  animo  with  which  the  rent  was  received.     3  H.  &  M.  436. 

And  after  all,  a  court  of  equity  interferes  for  the  protection  of  the  tenant 
against  this  forfeiture  of  his  estate,  and  will  relieve  him  on  payment  of  the" 
rent  with  interest  and  all  expenses ;  for  it  is  the  general  principle  of  that 
court  to  give  relief  to  the  party  against  a  forfeiture,  where  complete  com- 
pensation can  be  made.  12  Vez.  289,  475.  18  Vez.  58,  &c.  1  Mad.  31. 
How  far  the  principle  of  certain  cases  decided  in  Virginia,  which  have  re- 
fused relief  of  a  different  kind  to  tenants  who  have  committed  waste  and 
other  injuries,  would  apply  here,  I  cannot  say.  In  Hillrs.  Barclay,  it  seems 
to  have  been  admitted  that  relief  would  be  given  against  a  forfeiture  for  non- 
payment of  rent,  but  not  for  breach  of  other  covenants;  18  Vez.  56;  but 
the  question  for  solution  is,  whether,  where  the  tenant  has  broken  his  co- 
venants otherwise,  though  not  amounting  to  forfeiture,  equity  will  relieve  a- 
gainst  the  forfeiture  for  non-payment  of  rent. 

Lastly ;  in  the  consideration  of  the  remedies  afforded  by  the  law  for  re- 
covery of  rent,  it  is  proper  to  remark,  that  no  goods  or  chattels  whatsoever, 
on  any  messuages,  lands,  or  tenements,  which  are  leased  for  life  or  lives, 
for  years,  at  will,  or  otherwise,  shall  be  taken  in  execution,  unless  the  party 
so  taking  the  same  shall,  before  removal  of  the  goods,  pay  the  rent  due  at 
the  time  of  the  taking  of  the  goods  in  execution  ;  provided  it  does  not 
amount  to  more  than  one  year's  rent:  and  the  officer  is  empowered  and 
required  to  levy  enough  to  pay  both  the  rent  and  execution  money.  I  R. 
C.  ch.  113,  §  7,  8.  And  by  a  late  act  it  is  provided,  that  if  there  be  rent  ac- 
cruing and  unpaid,  tho  tenant,  at  the  time  of  the  levy  of  an  execution  upon 
the  goods  and  chattels  on  the  leased  premises,  shall  tender  to  the  officer 
bond  and  security  for  payment  of  the  rent  when  it  becomes  due  ;  and  if  he 
fail,  the  party  suing  out  the  execution  may  proceed  to  execute  his  judg- 
ment, and  the  sheriff  shall  sell,  in  the  first  place,  so  much  of  the  goods  as 
will  suffice  to  pay  the  rent,  on  a  credit  corresponding  Vv'ith  the  time  of 
payment — taking  bonds  with  security  from  the  purchasers,  and  assigning 
such  bonds  to  the  landlord,  and  as  to  the  residue,  proceeding  as  in  other 
cases  of  execution.  But  no  more  than  one  year's  rent  is  allowed  to  the 
prejudice  of  the  execution,  in  any  case.     Sess.  acts,  1821,  ch,  29,  §  7. 

It  has  been  decided  that  the  property  must  be  on  the  premises  when  an 
execution  or  attachment  is  levied,  or  the  landlord  will  not  have  a  preference. 
3  Call,  439. 

If  the  sheriff  remove  the  goods  without  payment  of  the  rent,  and  after 
notice  and  a  formal  demand  of  the  rent,  an  action  on  the  case  lies  against 
him.  Vin.  Ab.Dist.  c.  3.  Stra.  97:  3B.  &A.  440.  But  no  specific  and 
formal  notice  is  necessary.  3  B.  &  A.  645.  4  Moore,  473.  2  B.  &  B. 
67,  S.  C.  The  action  lies  though  part  only  of  the  goods  be  removed,  4 
Moore,  473.  2  B.  &  B.  67,  S.  C. ;  but  the  landlord's  consenting  to  the 
removal  waives  his  remedy.  3  Camp.  24.  An  executor  or  administrator, 
1  Stra.  212,  or  a  trustee  of  an  outstanding  satisfied  term  to  attend  the  in- 
heritance may  sue.  4  Moore,  473.  2  B.  &  B.  67,  S.  C.  Instead  of  an  ac- 
tion the  landlord  may  move  the  court  out  of  which  the  execution  issued, 
that  he  may  be  paid  what  is  due  to  him  out  of  the  money  levied,  and  in  the 
sheriff's  hands  ;  Cas.  Temp.  Hardw.  155.     2  Wils.  140 ;  and  the  court  will 


24  ACCORD.  [book  3. 

grant  the  motion,  though  the  sheriff  liad  no  notice  of  the  rent  due  till  after 
the  removal.  3  B.  &  A.  440  ;  and  see  farther,  on  this  point,  Tidd's  Prac. 
8th  edit.  1053,  4,  5.     Chitty. 

Remedy  in  Equity. — Before  we  dismiss  the  subject  of  the  remedies  for 
the  recovery  of  rent,  we  must  advert  to  the  relief  sometimes  given  in  equity 
in  such  cases.  For  where  there  is  no  remedy  at  all  at  law,  equity  will  cer- 
tainly grant  one  ;  1  Fon.  144  ;  as  in  case  of  a  reiit-seck,  it  will  decree  seisin  ; 
or  give  relief  where  the  deeds  are  lost ;  and  so  if  it  be  uncertain  what  kind 
of  rent  it  was  ;  or  from  length  of  time  the  remedy  at  law  is  lost  or  be- 
come very  difficult,  the  court  of  chancery  has  interfered  and  given  relief 
•  upon  the  foundation  only  of  payment  of  rent  for  a  long  time.  1  Mad.  144. 
1  Ch.  Ca.  121.  4  Br.  P.  C.  139.  G  Br.  P.  C.  368.  3  P.  Wms.  257.  1 
Atk.  598.  1  Br.  Ch.  Ca.  200.  1  Vez.  171.  4  John.  C.  287.  These  bills 
are  called  bills  founded  upon  the  solet.  And  though  in  England  rents-secfc 
are  put  on  the  same  footing  with  others,  and  may  be  demanded  by  action 
of  debt,  or  distrained  for,  yet  it  is  otherwise  in  Virginia,  there  being  no  sta- 
tute here  corresponding  with  the  statute  of  Anne.  It  is,  therefore,  through 
the  courts  of  equity,  I  presume,  that  the  claimants  of  rent-sec7c  must  ex- 
pect relief  with  us. 


CHAPTER  II. 
REMEDIES  BY  THE  JOINT  ACT  OF  THE  PARTIES. 

"  Having  thus  treated  of  the  several  species  of  remedies  which  may  be 
had  by  the  mere  act  of  the  party  injured,  I  shall  next  briefly  mention  such 
as  arise  from  the  joiiit  act  of  all  the  parties  together.  And  these  are  only 
two,  accord  and  arbitration. 

1.  "  Accord  is  a  satisfaction  agreed  upon  between  the  party  injuring  and 
the  party  injured  ;  which  when  performed  is  a  bar  of  all  actions  upon  this 
account.  As  if  a  man  contract  to  build  a  house  or  deliver  ahorse,  and  fail 
in  it ;  this  is  an  injury  for  which  the  sulFerer  may  have  his  remedy  by  action  ; 
but  if  the  party  injured  accepts  a  sum  of  money,  or  other  thing,  as  a  satis- 
faction, this  is  a  redress  of  that  injury,  and  entirely  takes  away  the  ac- 
tion." 

The  subject  of  accord  and  satisfaction,  thus  cursorily  treated  by  Mr.  Black- 
stone,  requires  to  be  somewhat  further  investigated  by  the  student.  Let 
us  therefure  enquire, 

1.  AVhat  is  a  good  accord  and  satisfaction  ?  First,  in  respect  of  the  debt, 
duty,  demand,  or  action  to  be  satisfied  :  second,  in  respect  to  the  value  and 
kind  of  satisfaction  :  third,  its  acceptance  as  such. 

An  accord  and  satisfaction  is  in  general  a  discharge  of  any  precedent 
debt  or  duty,  demand  or  personal  action,  provided  it  be  accepted  as  such, 
and  appear  to  be  a  reasonable  and  good  satisfaction.  Hence  an  accord 
and  satisfaction  must  be  of  something  certain  and  dciinite,  or  it  will  be  void. 
4  Mod.  88.  3  Lev.  189.  Yel.  124.  In  1  Chitty,  480,  iniiote,  it  is  said, 
on  the  authority  of  7  East,  150,  that  accord  and  satisfaction  is  no  plea 
to  debt  on  a  money  bond.  But  the  authority  is  conceived  not  to  support 
this  |)ositioii,  and  it  seems  to  liave  been  decided  that  jKiyment  of  a  les- 
ser sum  than  was  due  on  the  bond,  if  made  before  the  time  of  payment  of 
the  bond,  and  accepted  as  a  satisfaction,  is  a  good  discharge.  See  5  Co. 
117.  2  Lev.  61,  cited  Bac.  Accord,  A.  Hardcastle  vs.  Howard,  cited  ibid. 
So,  I  presume,  a  collateral  satisfaction  may  be  good,  if  executed  and 
not  executory. 

In  real  actions,  accord  and  satisfaction  cannot  be  pleaded.  4  Rep.  1,  9; 
70.     9  Rep.  77.     But  it  jnay  to  an  ejectment,  for  that  is  but  trespass. 


CHAP.  2.]  ACCOKD.  25 

Where  accord  and  satisfaction  is  relied  on,  there  nuist  be  an  cxistiiin- 
debt,  duty,  demand,  or  rii;ht  ol"  action,  at  the  time  of"  tlie  accord  ;  for  ac- 
cord and  sutisfaction  made  before  Ineach  of  covenant,  cannot  be  pleaded 
in  bar  ol"  an  action  for  breach  of  the  covenant.  1  Taunt.  428.  But  this 
decision  rcstin;T  upon  merely  legal  and  technical  principles,  I  presume  that 
a  court  of  equity  in  such  case  would  relieve  and  stay  })roccedings  in  the  ac- 
tion of  covenant. 

If  several  persons  arc  bound  or  liable,  accord  and  satisfaction  from  one< 
is  a  satisfaction  as  to  all.  Thus  accord  and  satisfaction  by  one  copartner,  is 
a  bar  to  any  action  against  the  others.  Sec  9  Rep.  79,  cited  by  Chitty. 
So  if  several  are  bound  in  a  covenant  which  is  broken,  an  accord  and  sat- 
isfaction made  by  one,  the  rest  may  avail  themselves  of.  This  is  founded 
in  justice,  for  where  the  party  has  been  once  satislied,  it  would  be  unjust 
that  he  should  be  permitted  to  seek  another  satisfaction.  It  is  also  the  re- 
sult of  a  general  principle,  that  where  several  arc  jointly  bound,  a  discharge 
of  one  is  a  discharge  ol'all,  since  an  action  in  such  case  can  only  be  brought 
jointly,  and  in  a  joint  action  the  judgment  must  also  be  joint,  that  is,  the  same 
judgment  must  be  rendered  against  all  the  del"endants.  Nor  is  this  doctrine 
confined  to  contracts  ;  for  in  cases  o\' lorls,  the  party  injured  is  iir  like  manner 
denied  more  than  one  satisfiiction,  even  though  it  be  expressly  provided 
that  the  release,  or  accord  and  satisfaction,  shall  not  operate  in  favor  of  the 
other  trespassers;  2  H.  &M.. 39.  3  Taunt.  117.  Bac.  Tresp.  J.  9  Rep. 
79;  so  that  if  there  be  several  trespassers,  and  one  make  satisfaction,  tha 
others  are  discharged. 

2.  In  respect  of  the  value  and  kind  of  compensation.  However  techni- 
cal some  of  the  doctrines  on  this  subject  may  seem,  we  shall,  upon  a  nice 
scrutiny,  discover  that  they  arc  generally  founded  on  principles  of  justice 
and  good  sense. 

We  must  first  observe,  that  an  agreement  which  is  executory  ^xxd  yet  to  be 
performed,  can  never  ill  law  be  pleaded  as  an  accord  and  satisf"action.  As 
where  the  defendant  pleaded  payment  of  part  bel'ore  the  day  the  bond  be- 
came due,  and  a  i)romisc  made  and  accepted  to  pay  the  rest  at  a  day  to 
come.  This  was  held  no  satisfaction  until  payment  made,  because  the 
bond  being  the  highest  security,  could  notbe  discharged  by  a  mere  promise 
to  pay.  So  where  the  defendant  to  an  action  brought  by  one  of  his  credi- 
tors, pleaded  that  the  creditors,  and  among  others  the  plaintiff,  had  come  to 
an  agreement  to  accept  a  composition  in  satisfaction  of  their  debts,  to  be 
paid  within  a  reasonable  time,  which  he  tendered  and  was  ready  to  pay,  this 
was  held  no  bar  to  an  action  for  the  whole  demand,  for  it  was  unexecuted, 
and  the  promise  a  nudum  pactum  for  want  of  consideration.  2  T.  R.  24. 
2  H.  B.  317.  If,  however,  the  defendant  had  made  an  actual  assignment 
of  his  effects  for  the  purpose  of  distribution  among  his  creditors,  it  might, 
it  is  said,  have  been  a  good  plea.  2  T.  R.  24.  Sec  Sci.  &  Barn.  103. 
See,  also,  11  East,  390.  2  Barn.  &.  Cr.  481.  Upon  the  same  principle, 
where  tlie  plaintiff"  and  defendant  agreed  to  settle  ail  matters  in  dispute,  and 
to  bind  themselves  in  a  penalty  not  to  sue  each  other,  the  court  held  the 
agreement  executory,  and  rvo  sufficient  accord  and  satisfaction.  5  T.  R. 
141. 

The  principle  on  which  this  distinction  rests,  is  the  distinction  explained 
in  the  f(n'iner  volume  between  a  contract  executed  and  executory  ;  the  former 
being  held  good  whether  there  be  a  consideration  or  not,  but  the  latter  be- 
ing regarded  as  nudum  pactum  unless  there  be  a  consideration.  This  was 
avowedly  the  ground  of  decision  in  Heathcotc  vs.  Crookshanks,  (2  T.R. 
2t,)  and  the  agreement  to  give  up  15s.  in  the  pound  on  receiving  5s.  was 
regarded  as  a  nude  pact,  and  so  no  bar  to  the  plaintiff's  action.  But  if  a  cre- 
ditorj  by  hi3  undertaking  to  accept  a  composition,  induce  the  debtor  to 
Vol.  2—1 


26  ACCORD.  [  BOOK  3. 

part  witli  his  property  to  hit  creditors,  or  induce  other  creditors  to  discharge 
the  debtor,  to  enter  into  a  composition-deed,  or  deliver  up  securities  to  him, 
such  creditor  would  be  bound  by  such  undertaking.  '2  Stark.  Rep.  407. 
2  M.  &  S.  1-20.  1  Esp.  230.  And  where  several  creditors,  with  the  know- 
ledge of  each  other,  agree  on  the  faith  of  each  other's  undertaking  to  give 
time  to,  or  accept  a  composition  from,  a  debtor,  the  agreement  will  be  bind- 
in  o-  on  every  creditor  who  is  party  to  it.  3  Camp.  175.  2  M.  &  S.  122. 
16  Vez.  374. 

Another  princijjle  as  to  accord  and  satisfaction  seems  to  be,  that  tlie  par- 
ty cannot  exchange  one  cause  of  action  for  another  of  the  same  nature: — 
said  arguendo,  2  T.  R.  25.  See  Chitty  on  Bills,  95.  Accordingly  it  is  ad- 
judged that  one  simple  contract  canitot  be  pleaded  in  bar  of  another.  Nor 
can  one  bond  be  so  pleaded,  even  though  to  the  last  bond  there  are  securi- 
ties. 1  Stra.  426,  citing  Brownlow  &  Roll.  So  where  several  small  pro- 
missory notes  are  given  for  a  large  one  ;  they  are  no  satisfaction  unless 
paid.  3  Call.  231.  So  where  upon  a  settlement  of  accounts  a  promisso- 
ry note  is  given  for  the  balance,  the  note  is  no  bar  to  an  action  on  the  ac- 
count. 1  Bur.  i).  1  Bl.  Rep.  65.  For  the  law  looks  to  the  essence  of  the 
transaction,  and  as  the  money  yet  remains  unpaid,  will  not  intercept  the 
plaintiff  in  the  prosecution  of  the  remedy  which  he  has  elected  for  the  re- 
covery of  what  is  due  to  him.  See  3  Call,  237.  Where,  however,  a  bond 
is  given  upon  the  settlement  of  accounts,  that  is  a  satisfaction  and  dischrarge 
of  the  account,  and  may  be  pleaded  in  bar  of  an  action  of  assianpsit.  For 
this  many  reasons  may  be  given.  The  bond  is  deemed  by  the  law  a  liigh- 
er  security,  and  the  simple  contract  is  merged  in  it :  the  bond  is  regarded 
as  importing  a  consideration,  whether  there  be  one  or  not,  and  therefore  is 
binding  :  the  bond  gives  an  action  of  another  and  an  higher  nature,  in  which 
the  consideration  cannot  be  enquired  into  ;  the  bond  is  an  estoppel  to  the 
obligor  by  reason  of  his  seal,  and  to  the  obligee  by  reason  of  his  acceptance, 
(for  estoppels  are  always  mutual,)  and  neither  party  is  permitted  to  contest 
(in  a  court  of  law)  th«  truth  a)id  verity  and  justice  of  the  demand,  or  to 
ravel  up  the  transactions  which  were  closed  by  it.  But  these  reasons  do 
not  apply  to  the  case  of  a  promissory  note  given  for  the  balance  of  an-  ac- 
count. In  2  Chitty,  435,  it  is  said,  indeed,  that  such  a  plea  is  sustainable, 
but  the  case  of  Kcarslake  vs.  Morgan,  there  cited,  does  not  maintain  the  po- 
sition. That  case  was  an  assii:;nmvnt  of  the  promissory  note  of  a  third 
person,  and  not  an  execution  of  a  note  by  the  del'endant  himself.  This 
brings  me  to  another  principle  : 

There  is  a  distinction  where  the  thing  given  or  done  in  satisfaction  differs 
from  the  debt,  duty,  or  thing  demanded,  and  where  it  does  not.  Where  it 
js  of  the  same  nature  with  the  thing  demanded,  nothing  less  than  the  debt 
or  duty  can  be  held  a  satisfaction.  Hence,  in  1  Str.  426,  it  is  laid  down 
that  payment  of  a  less  sum  is  no  good  satisfaction  for  a  debt  due  at  the 
lime  of  accord,  though  accepted  as  such  ;  and  though  this  case  is  alleged 
to  have  been  denied  to  the  law,  (5  T.  R.  515.  2  T.  R.  26.)  yet  the  same 
principle  is  alhrmed,  5  J'ast  Rop.  230  ;  see,  also,  4  Mod.  88  ;  and  the  reason 
seems  to  be,  that  tlie  giving  up  the  residue  being  without  consideration,  the 
defendant  can  no  more  avail  himself  of  the  nnilc  pact  to  do  so  by  plea,  than 
he  could  sue  upon  such  void  agreetnent;  and  having  left  the  bond  in  the 
|)lainlifrs  hands  without  taking  a  release,  it  is  in  eflect  not  an  executed,  bat 
a  mere  executory  contract. 

But  where  the  satisfaction  made  diflers  from  the  debt  or  duty,  there  it 
may  be  a  good  satisfaction  ;  as  where  in  salislaction  for  a  debt  due  by  bond 
a  horse  is  given  ;  Co.  Lilt.  212,  b.  2  T.  R.  21 ;  for  the  court  willintcnd 
or  presume  that  there  was  some  circumstance  that  in  the  eye  of  the  party 
elarnped  a  value  upon  it  cr]ual  to  that  at  which  it  has  becu  estimated,    Bac, 


CHAP.  2.]  ACCORD.  27 

Accord,  A,  P'ormerly,  indeed,  it  was  decided  that  it  must  appear  to  the 
court  to  be  a  good  and  reasonable  satisfaction;  1  St.  426;  but  this  case 
has,  as  to  this  point,  been  so  far  overruled,  as  that  it  is  now  only  necessa- 
ry that  the  contrary  should  not  appear.  It  was  also  formerly  held  (9  Co. 
79,)  that  if  a  contract  not  under  seal  was  made  for  delivery  of  goods, 
a  sum  of  money  paid  might  be  a  satisfaction  :  but  not  if  the  contract  was 
under  seal.  Mr.  Blackstone,  however,  does  not  advert  to  the  distinction, 
though  he  quotes  the  authority  :  and  at  this  day,  I  presume,  it  would  not 
be  attended  to,  as  money  is  the  best  measure  of  damages. 

Again  : — where  the  satisfsclion  is  of  the  same  nature  with  the  debt,  yet 
where  any  circumstance  may  make  a  less  quantity  of  equal  value  with  the 
greater,  it  may  be  a  good  satisfaction.  As  where  a  less  sum  is  paid  before 
the  day  at  which  the  bond  is  due,  or  at  a  different  place,  because  prompt 
payment,  or  varying  the  place,  might  be  a  sufficient  consideration  for  abat- 
ing the  demand.     5  Co.  117.     2  Lev.  81.     Co.  Litt.  212,  b. 

To  one  of  these  two  last  heads  are  reducible  the  cases  of  promissory 
notes  and  bonds,  or  bills  of  exchange,  &c.  assigned  or  negotiated  in  satis- 
faction of  a  debt.  We  have  seen  that  where  the  party  gives  his  owri  pro- 
missory note,  it  is  no  satisfaction.  But  where  he  transfers  the  promissory 
note  of  a  third  person  in  satisfaction,  or  a  third  person  guarantees,  (11  E. 
390.  10  C.  L.  R.  .396,)  the  plea  of  accord  and  satisfaction  is  good.  5  T. 
R.  513,  518.  So,  too,  if  the  defendant  has  accepted  a  bill  of  exchange 
drawn  by  the  plaintiff  for  the  amount,  it  is  a  bar,  for  that  is,  in  fact,  a  pay- 
ment: per  Lord  Mansfield,  cited  5  T.  R.  518.  So  if  the  defendant  drew 
a  bill  of  exchange  in  favor  of  the  plaintiff  on  a  third  person,  which  was  ac- 
cepted ;  here,  as  in  the  case  of  the  promissory  note,  the  bill  would  prima 
facie  be  taken  as  satisfaction  ;  for  in  both  cases  the  security  may  have  been 
passed  over  to  some  other  endorsee,  so  that  the  plaintiff  would  no  longer 
have  a  right  to  the  money  from  the  defendant.  (Yet  in  Drake  vs.  Mitchell, 
3E.  251,  a  bill  of  exchaqge  drawn  by  one  of  three  joint  covenantors,  was 
not  regarded  as  a  satisfaction,  though  it  had  been  sued  on  and  judgtnent  re- 
covered, but  the  amount  had  not  been  received.)  So  in  the  case  of  a  bond 
assigned^  the  assignment,  if  accepted  as  a  satisfaction,  is  so  prima  facie. 
In  the  cases  of  hills  of  exchange,  however,  it  would  seem  that  the  plaintiff 
may  reply  that  the  bill  was  not  paid  when  due,  or  was  not  transferred  over, 
&c.  or  that  it  was  dishonored,  &c. ;  2  Chitty,  602,  in  note  ;  and  upon  ten- 
dering it  with  his  replication,  and  shewing  that  he  had  used  due  diligence  to 
receive  payment,  the  plea  would  be  avoided.  This  is,  I  presume,  on  the  au- 
thority of  the  case  of  Kearslake  vs.  Morgan,  in  which  the  court  recommend- 
ed to  the  plaintiff  to  reply  to  the  plea ; — and  if  the  plea  was  good,  it  could 
only  be  avoided  by  taking  issue  on  its  truth, — or  avoiding  it  by  alleging  that 
the  note  assigned  had,  without  default  of  the  plaintifi',  proved  unsatisfactory. 
The  same  law  would  prevail  in  England  as  to  promissory  notes,  under  the 
statute  of  Anne,  which  puts  them  on  the  footing  of  bills  of  exchange.  But 
in  Virginia,  as  to  bonds  and  promissory  notes,  the  replication  must  shew 
due  diligence  to  the  extent  required  by  our  law  of  all  assignees  of  such  pa- 
per, in  order  to  avoid  the  plea,  and  therefore  obviously  the  plaintiff  in  such 
case  where  the  note  or  bond  is  taken  in  satisfaction,  cannot  sue  til!  he  has 
failed  in  his  pursuit  on  the  assigned  bond.     See  1  Cranch,  191.* 

We  must  here  attend  to  the  distinction  between  bonds,  &c.  assigned  in 
satisfaction,  and  those  transferred  as  collateral  security  only.  The  former 
being  considered  as  payments,  they  discharge  the  original  bond,  debt,  or 
duty,  or  at  least  suspend  it  until  their  fate  is  determined ;  and  we  have 

*  Wlietlier  the  bond  of  one  partner  will  pxlinEuiah  a  partnership  deniaud.  See  Bac  Abr.  Ex- 
ting.D.  3  F.  Wins.  407.  1  P.  Wins.  632.  1  Ran. 301.  J2C.L.R.203.  2  John.  Re  p.  213.  3  John. 
Kep.  70.    A  case  Jius  ic.ceijtiv  bee;)  decided  on  ihiis  point  in  the  court  of  cippcals.    4  Leigh. 


28  ARBITRAMEJJT.  cook  3. 

seen  tliat  tlic  assiirnoc  is  often  com]ielled  to  await  the  termination  even  of 
an  injuiictio)!  suit,  hofoie  lie  can  have  rcooursc  to  the  assifrnor.  But  where 
a  bond  is  taken  as  collateral  security  only,  the  creditor  who  takes  it  may  ne- 
vertheless proceed  upon  his  original  demand,  niiless  expressly  withheld  by 
conventional  stipulation.  G  T.  11.  17(),  177.  Hence,  in  the  transaction 
of  business,  counsel  should  be  very  cautious  in  receiving  bonds,  Sec.  in  pay- 
ment, and  wherever  it  can  be  eflccted,  should  take  them  as  collateral  secu- 
rity only.  There  is,  indeed,  particular  reason  for  this  caution  where  there 
is  'a  security  in  the  l)ond  thus  paid  or  satisfied ;  for  by  the  assignment  of 
other  bonds  iu  satisfaction  or  payment,  the  security  will  be  absolved  ;  unless, 
indeed,  the  decision  in  Kearslake  vs.  Morgan,  is  considered  as  establishing 
the  position  that  such  assignment  is  no  satisfaction  till  payment.  1  cannot 
help  thinking  that  this  doctrine  does  not  follow  from  the  decision  there,  that 
it  would  not  prevail  here,  and  that  an  accepted  bill  ol"  exchange,  or  an  as- 
signed bond,  bill,  or  note,  received  in  satisfaction,  would  be  regarded  as 
payment.  Such  appears  to  be  the  generally  prevailing  practice  of  the 
country. 

Thirdly.  As  it  is  of  the  essence  of  every  contract  tliat  it  should  liave  the 
assent  of  both  parties,  so  in  the  case  of  accord  and  satisfaction,  the  satis- 
faction must  be  accepted  as  such,  or  it  will  not  avail. 

The  mere  consent  of  a  party  to  accept  a  satisfaction,  without  an  actual 
satisfaction,  is  not  sufficient  to  discharge  the  other;  the  accord  and  satisfac- 
tion must  be  perfect,  complete,  and  executed,  for  were  it  otherwise,  it  would 
be  only  substituting  one  cause  of  action  lor  another,  which  might  go  on  to 
any  extent.  9  Jlcp.  79,  b.  5  T.  R.  111.  Satisfaction  must  be  made  to  the 
■whole  of  the  original  demand,  and  a  party  will  not  be  discharged  upon  per- 
formance of  a  satisfaction  to  part  of  such  demand,  the  residue  remaining 
unperformed.  1  Taunt.  oiC}.  5  East, -230.  The  ])crformance  of  one  of 
two  things  stipulated  for  by  an  accord  is  nugatory.     Lord  Raym,  203. 

We  have  already  seen  how  far  a  contract  may  be  varied,  released,  or  dis- 
charged by  another  contract.  A  deed  before  breach  cannot  be  discharged 
by  accord  and  satisfaction  without  a  deed.  1  Taunt.  428.  Com.  Dig. 
Pleader,  2  v.  8.  But  after  breach  accord  and  satisfaction  without  deed  is  a 
<T()od  plea,  lor  there  the  satisfaction  is  of  the  breach,  and  not  of  the  deed. 
Com.  Di-r.  Accord,  A.  1,  &  C.  7  East,  loO.  1  J.  B.  Moore,  358,  400. 
Cro.  Eli7..4().     2Wils.  8().     0  Rep.  13,  b.     Chilly. 

2.  Having  thus  seen  what  is  a  good  accord  and  satisfaction,  Ave  come 
next  to  enquire  how  it  is  to  be  ])leaded.  And  here  the  rule  of  ])lcading  as 
in  other  cases,  is  afforded  by  the  princi})le  of  the  plea.  For  as  it  is  essen- 
tial that  there  should  be  an  accord  —  that  there  slK)uld  be  a  satisfaction,  and 
that  it  should  be  (LcccpU-d  as  a  satisfaction,  so  all  these  things  should  appear 
and  lje  jjropcrlv  averred  in  the  ])lea.  Bac.  Accord.  C.  1  Str.  23,  573.  3 
f-^ast,  251.  If  it  be  the  case  of  a  bond,  it  is  said  the  proper  form  is  to  jdead 
that  the  payment  or  other  thing  was  received  in  satisliiclion  of  the  mvncy 
<!ue  l)y  the  bond,  and  not  of  the  boiul  itself,  which  bring  sealed,  can  only 
be  discharged  by  writing  unihirseal.  Cro.  .Ta.  251,  (>50.  For  the  forms  ot 
pleas  of  accord,  sec  2  Chitty,  433,  431,  435,  43G. 

In  actions  of  trespass  r/Hrtre  clausum,  if  the  defeiulaul  disclaims  title,  and 
I  an  shew  that  the  tresj)ass  was  by  negligence  <u  iinolmiliiry,  and  that  he 
lendered  suflicient  amends  before  aclion  brnught,  ihe  aclion  will  be  barred. 
I  R.  C.  ch.  128,  §  22. 

II.  "  Ajbiiration  is  whore  ihe  parties,  injtiring  and  injured,  submit  all 
matters  in  di.'^pule,  concerning  any  personal  chattels  or  jjcrsonal  wrong,  to 
the  judgment  of  two  or  more  nrhilralors ;  who  are  lo  decide  the  contro- 
versy: and  if  they  do  not  agree,  it  is  usual  to  add,  that  another  person  be 
called  in  sl^  umpire,  (iiupcrulor  or  iir.jiur,)  to  whose  sole  judgment  it  is  then 


CHAi'.  -2.]  ARBITRAMENT.  29 

referred:  or  frcqiicnlly  (here  is  only  one  arbitrator  originally  aj)pointcd. 
This  decision,  in  any  of  lliese  cases,  is  called  an  mcard.  And  thereby  the 
question  is  as  fully  determined,  and  the  rinlit  transferred  or  settled,  as  it 
couhl  have  been  by  the  agreement  of  the  parties  or  the  judgment  of  a  court 
of  justice.  But  the  right  of  real  ])ropGrty  cannot  thus  pass  by  a  mere  award  : 
which  subtility  in  point  of  form  (for  it  is  now  reduced  to  nothing  else)  had 
its  rise  from  feodal  principles  ;  for,  il'this  had  been  permitted,  the  land  might 
have  been  aliened  collusively  without  the  consent  of  the  superior.  Yet 
doubtless  an  arbitrator  may  now  award  a  conveyance  or  a  release  of  land; 
and  it  will  be  a  breach  of  the  arbitration-bond  to  refuse  compliance.  For, 
though  originally  the  submission  to  arbitration  used  to  be  by  word,  or  by 
deed,  yet  both  of  these  being  revocable  in  their  nature,  it  is  now  become 
the  practice  to  enter  into  mutual  bonds,  with  condition  to  stand  to  the  award 
or  arbitration  of  the  arbitrators  or  umpire  therein  named."  And  experience 
having  shewn  the  advantage  of  such  references,  it  is  now  provided,  1  R.  C. 
eh.  114,  that  it  shall  be  lawful  for  merchants,  and  others  desiring  to  end 
any  controversy,  for  which  there  is  no  other  remedy  but  by  personal  action 
or  suit  in  equity,  by  arbitration,  to  agree,  that  their  submission  of  the  suit 
to  the  award  or  umpirage  of  any  person  or  persons  shall  be  made  a  rule  of 
any  court  of  record  which  the  parties  shall  choose,  and  to  insert  such  their 
agreement  in  their  submission  or  the  condition  of  the  bond  or  promise, 
whereby  they  oblige  themselves,  respectively,  to  submit  to  the  award  or  um- 
pirage of  any  person  or  persons  ;  and  upon  the  production  of  such  bond 
or  agreement  sustained  by  the  testiniony  of  the  witness  or  witnesses,  it  is 
enacted  that  a  rule  shall  be  made  thereupon  by  the  said  co)irt,  that  the  par- 
ties shall  submit  to  and  finally  be  concluded  by  the  arbitration  or  umpirage, 
which  shall  be  made  concerning  them  by  the  arbitrator  or  umpire  pursuant 
to  such  submission. 

The  award  made  in  pursuance  of  such  submission  is  to  be  entered  up  as 
the  judgment  or  decree  of  the  court,  and  the  same  execution  or  process 
may  issue  thereupon  as  on  other  judgments  or  decrees,  and  the  court  shall 
not  invalidate  such  award,  arbitrament,  or  umpirage,  unless  it  be  made  ap- 
pear to  such  court,  that  such  award,  arbitrament,  or  umpirage  was  procured 
by  corruption  or  other  undue  means,  or  that  there  was  evident  partiality  or 
misbehaviour  in  the  arbitrators  or  umpires,  or  any  of  them.  And  any  award, 
arbitrament,  or  umpirage,  procured  by  corruption  or  other  undue  means,  or 
whore  tlicre  shall  have  been  such  evident  partiality  or  misbehaviour  as 
aforesaid,  shall  be  deemed  and  judged  void  and  of  none  effect,  and  accord- 
ingly set  aside  by  the  court  in  which  the  submission  shall  be  made,  so  as 
complaint  of  such  corruption  or  undue  means,  or  evident  partiality  or  mis- 
behaviour as  aforesaid,  be  made  before  the  end  of  the  second  court  of  quar- 
ter sessions  in  the  case  of  a  county  court,  or  at  the  end  of  the  second  term 
of  any  other  court  next  after  such  award,  arbitrament,  or  umpirage  be  made 
and  returned  to  such  court. 

Provided,  nevertheless,  That  nothing  in  the  act  contained  shall  be  con- 
strued to  take  away  from  courts  of  equity  their  power  over  awards,  arbitra- 
ments, or  umpirages. 

The  subject  of  awards,  having  now  become  an  imi)ortant  part  of  tlie  bu- 
siness of  the  tribunals  of  justice,  seems  to  demand  a  further  consideration 
than  Mr.  Blackstone  has  given  to  it.  In  pursuing  the  several  members  of 
iiis  definition,  we  shall  find  the  subject  naturally  divide  itself  into  the  fol- 
lowingheads:  I.  The  parties.  II.  Tiie  matter  in  dispute.  III.  Thesub- 
mission.     IV.  The  arbitrators  and  umi)ire.     V.   The  award. 

Here,  I.  As  to  the  parties.  Generally,  whoever  can  contract,  may  sub- 
mil  a  dispute  to  arbitration.  But  those  who  cannot  contract,  are  incapa- 
ble of  such  submission,  lijr  it  is  a  contract.     See  G  Mun.  15-J.     Yet  a  luis- 


30  ARBITRAMENT.  [  book  3. 

band  may  submit  for  his  wife  any  thing  which  he  lias  a  right  to  dispose  of, 
see  Stiles,  351.  5  Vez.  81G,  but  nothing  else;  audit  has  been  said  an 
infant's  guardian,  or  a  third  person,  may  bind  himself  that  an  infant  shall 
stand  to  an  award.  Kyd,  39.  3  Caines'  Rep.  253.  So  the  submission 
of  an  executor  or  administrator  is  valid,  though  if  the  arbitrator  do  not 
award  him  the  full  amount  of  what  his  testator  was  entitled  to,  he  will  be 
responsible  for  the  difference  to  creditors,  legatees,  and  distributees.  Toll. 
4'25.  Kyd,  39.  7  T.  R.  453,  GUI.  No  such  submission  should  there- 
fore be  advised,  and  the  rather  as  the  executor  is  even  estopped  to  allege 
that  he  has  fully  administered  the  estate,  by  giving  a  bond  expressly  bind- 
ing himself  to  perform  such  award  as  may  be  made  on  the  matter  of  liti- 
gation between  his  testator  and  another  ;  though  a  mere  submission  with- 
out bond  is  not  an  admission  of  assets.  Kyd,  40.  Nor  would  a  submis- 
sion by  bond  in  which  the  question  of  assets  or  no  assets  was  included,  as 
well  as  the  original  matter  of  dispute,  be  considered  as  an  admission  of  as- 
sets. 

It  is  a  general  rule  that  the  parties  to  the  submission  alone  are  bound, 
even  in  the  case  of  partners.  Kyd,  42.  Watson,  445.  3  Bing.  Rep.  101. 
And  where  some  of  a  number  of  distributees  submit,  the  award  will  bind 
Uhem,  4  Ran.  95,  but  them  only.  Yet  a  man  is  bound  by  a  submission  en- 
tered into  by  his  agent  or  attorney  in  fact  by  his  authority  ;  and  then  the 
agent  or  attorney  is  not  bound  :  though  if  without  authority  an  attorney  en- 
jter  into  bond  with  condition  that  the  principal  shall  perform  an  award,  the 
tttorney  is  liable,  but  the  principal  is  not.  Yet  an  attorney  at  law  may,  it 
is  said,  agree  to  refer  a  cause  depending  in  court,  for  the  power  is  implied 
under  his  general  authority,  (Kyd,  45,)  nor  will  the  court  set  aside  the  refer- 
ence, although  before  the  award  the  party  made  affidavit  that  it  was  an  un- 
authorized act.     3  Taun.  486. 

All  who  would  be  bound  by  an  award  if  against  them,  shall  have  the 
advactage  of  it  if  it  be  in  their  favor.  Thus  an  executor  may  take  ad- 
vantage of  an  award  made  in  favor  of  his  testator  before  his  death.  Kyd, 
48,  49. 

II.  The  matter  in  dispute,  or  subject  of  reference.  The  rule  is  general 
as  laid  down  by  Mr.  Blackstone,  that  any  matters  in  dispute  concerning 
personal  chattels,  debts,  or  |)ersonal  wrong,  maybe  submitted  to  arbitration  ; 
as  debt  on  a  simple  contract,  a  demand  for  use  and  occupation,  and  doubt- 
less a  dispute  as  to  tiie  balance  due  on  a  bond.  So  complaints  of  slander, 
assault  and  battery,  and  trespass  of  every  kind,  whether  personal  or  on  the 
land  of  the  party  injured,  may  be  submitted  :  and  so  may  disputes  as  to 
real  property,  and  the  award  made  under  such  submission  is  binding  on  the 
parties  whenever,  by  their  own  act,  they  might  transfer  the  property,  or  ex- 
ercise acts  of  ownership  concerniug  it,  and  it  is  conclusive  as  to  the  title. 

3  East,  15.  In  such  case,  however,  where  it  is  awarded  that  the  freehold 
shall  pass  from  one  to  the  other,  it  is  most  proper  to  award  conveyances, 
since  in  strictness  without  a  conveyance  the  award  will  not  pass  the  title. 
Kyd,  Gl.     Yet  it  may  be  used  as  an  estoppel  in  an  ejectment.     3  East,  15. 

4  Dall.  120.  And  wliere  a  conveyance  is  awarded,  a  bill  will  lie  for  a  spe- 
cific performance  of  the  award.  1  Wash.  290.  It  is  said  that  a  submission 
by  the  act  of  lUe  parties  (not  a  submission  by  rule  of  court)  must  be  made 
by  deed  in  order  to  justify  an  award  that  a  deed  be  made.  Kyd,  62.  No 
authority  is  cited,  and  I  should  question  the  position,  since  a  writing  signed 
by  the  party  and  not  sealed,  is  a  good  contract  to  bind  the  contractor  to  con- 
vey land. 

A  matter  involving  a  public  crime  cannot  be  submitted  to  arbitration  so 
as  to  bar  the  public  prosecution  ;  though  so  far  as  the  personal  wrong  goes, 
it  may  be  submitted,  unless  merged.     Kyd,  G3(i..  &c.     So,  causes  which 


CHAP.  2.]  ARBITRAMENT.  Si 

involve  an  indecent  or  immoral  transaction,  or  a  question  by  which  tfib 
peace,  character,  or  feelings  of  others  may  be  affected  or  wounded,  cah 
no  more  be  the  subject  of  arbitration  than  of  action.  See  Cow.  T'iii),  Kyd, 
C8. 

III.  We  come  next  to  speak  of  the  submission.  This  may  be  either  by 
the  act  of  the  parties  alone,  or  with  the  intervention  of  the  court.  The  first 
may  be  either  verbal  or  in  writing  ;  but  as  there  is  great  difficulty  oft-times 
in  ascertaining  the  precise  terms  or  subject-matter  of  a  verbal  submission,  it 
is  always  prudent  to  reduce  it  to  writing.  Yet,  if  verbal,  it  is  good  though 
there  is  no  express  promise  of  performance,  nor  the  mention  of  any  con- 
sideration. When  the  submission  is  in  writing,  it  is  usually  by  mutual 
bonds  given  by  the  parties  each  to  the  other,  in  a  penal  sura,  with  condition 
to  be  void  on  performance  of  the  award.  So  it  may  be  made  by  indenture 
or  an  agreement  between  the  parties,  sealed  by  them.  But  though  parties, 
on  entering  into  a  contract,  agree  that  if  a  difference  should  arise  between- 
them  they  will  refer  it  to  arbitrators  ;  yet  a  bill  for  specific  performance  of 
such  agreement  does  not  lie.  6  Vez.  818.  19  Vez.  431.  And  it  seems 
an  action  at  law  will  not  lie  for  refusing  to  nominate  an  arbitrator  in  pur- 
suance of  a  covenant  to  refer.  2  Bos.  &.  Pul.  13.  Nor  is  an  agreement  to 
refer,  a  bar  to  a  suitor  action,  though  if  the  party  sues  con-trary  to  his  bond 
of  submission,  he  is  liable  to  an  action  for  damages.  2  Vez.  132.  Nor 
can  a  party  by  an  agreement  to  refer,  deprive  himself  of  the  right  to  apply 
to  a  court  of  equity.  14  Vez.  271.  Indeed  a  mere  agreement  to  refer, 
without  an  actual  consequent  reference,  is  no  bar  to  an  action  in  any  case. 
2  Vez.  jr.  1-32.  Nor  can  parties  be  deprived  of  the  right  to  submit  their 
disputes  to  the  ordinary  tribunals,  by  any  restriction  laid  upon  them  by  those 
under  whom  they  claim ;  as  where  a  testator  directs  that  if  a  controversy 
arises  among  his  legatees,  the  dispute  shall  be  referred,  and  any  legatee  re- 
fusing, shall  lose  his  legacy  ;  Kyd,  20  ;  this  condition  is  repugnant  and  void : 
for  it  is  an  inherent  and  indestructible  right  attached  to  all  property,  that  the 
owner  shall  have  the  privilege  of  asserting  his  title  to  it  in  courts  of  justice. 
To  restrict  this,  is  to  limit  the  essential  powers  of  the  owner,  and  moreover 
to  interfere  with  the  jurisdictional  powers  of  the  courts. 

Thus  much  for  submissions  independent  of  the  act  of  assembly,  1  R.  C. 
ch.  114,  formed  upon  the  statute  of  William  3,  (here  recited  by  Mr.  Black- 
stone,)  and  nearly  in  the  same  words.  Under  this  act  it  may  be  observed, 
1.  That  it  does  not  apply  to  references  to  arbitration  of  suits  depending  in 
any  court,  but  only  to  cases  where,  no  suit  being  in  existence,  the  parties 
enter  into  arbitration  bonds,  agreeing  to  have  their  submission  made  and 
entered  as  a  rule  of  some  court  to  be  named  in  the  bond.  6  Taunt.  111. 
1  Call,  379.  2  Call,  443.  2.  Awards  made  under  the  act  must  lie  two 
terms,  including  that  to  which  they  are  returned.  One  made  nnder  an  or- 
dinary reference,  in  the  progress  of  a  cause,  may  be  entered  as  the  judg- 
ment of  the  court  at  the  term  at  which  it  is  returned.  3.  If  it  be  not  a- 
greed  by  the  bond  that  the  submission  be  made  a  rule  of  court,  the  award 
will  not  be  within  the  act;  1  Saun.  327,  a.  ;  but  it  will  be  so  if  the  agree- 
ment to  make  it  a  rule  of  court  be  endorsed  on  the  bond,  for  then  it  is  part 
of  it.     The  submission  cannot  be  by  parol.     7  T.  R.  1.      17  Vez.  419. 

The  death  of  either  party,  or  of  the  arbitrators,  (4  Moore,  3,)  or  the  mar- 
riage of  a.  feme  before  the  award,  is  a  revocation  of  the  submission.  1  Marsh. 
366.  2  Barn.  &,  Aid.  394.  And  it  seems  thateven  since  the  above  statute 
either  parly  may  revoke  by  deed  the  agreement  to  make  the  submission  a 
rule  of  court  at  any  time  before  it  is  so  entered.  7  East,  608.  And  if  the 
submission  was  by  parol,  the  revocation  may  be  so  too,  but  if  it  be  by  deed 
so  must  be  the  revocation,  and  notice  to  the  arbitrators  is  essenjiul.     Sec 


32  ARBITRATOIIS.  [  book  ii. 

Chilty's  notes.  Hut  in  cither  case  the  party  ia  lioI)lc  to  an  action  for  dam- 
a'^es  for  l)roach  of  iiis  contract  of  submission.  Kyd,  32.  ■ 
°Tlicre  is  a  (lilfcrence  between  submitting  "all  matters  in  dispute  in  the 
cause  between  the  parties,"  and  a  submission  of  "all  matters  in  dispute 
between  the  parties  in  the  cause;"  the  first  bcini,^  confined  to  the  dispute 
in  that  i)articular  cause,  whereas  the  latter  is  not.  '2  T.  R.  615.  3  T.  R. 
G-26.  But  yet  if  any  particular  matter  of  dispute  is  not  actually  brought 
before  the  arbitrators,  and  of  course  is  not  decided,  the  party  may  afterwards 
have  iiis  action  for  it,  notwithstanding  the  award.      I  T.  R.  11(5. 

It  is  usual  and  oven  necessary  to  lix  a  time  within  which  the  arbitrators 
shall  pronounce  their  award.     Kyd,  20,  27. 

IV.  Of  the  arbitrators  and  umpire.  An  arbitrator  should  not  consider 
himself  as  the  agent  of,  or  lean  towards  the  person  by  whom  he  was  nomi- 
nated. 1  Vcz.  jr.  22G.  Rut  wliere  tlie  arbitrators  are  agreed  on,  it  seems 
to  be  a  waiver  of  an  objection  to  an  arbitrator  tliat  he  is  of  kin  to  the  other 
party.  Kyd,  75.  Yet  this  may  be  (piestioued,  I  presume,  where  there  was 
a  mere  agreement  that  the  parties  would  ap[)oint  arbitrators  ;  for  then  to  ap- 
point an  interested  person,  wouhl  not  be  acting  in  good  faith. 

"  Of  the  umpire."  The  umpire  is  sometimes  named  by  the  parties  them- 
selves at  the  time  of  the  submission,  and  sometimes  he  is  directed  to  be 
chosen  by  the  arbitrators.  Kyd,  70.  If  neither  is  provided  for,  and  the 
arbitrators  disagree,  equity  cannot  supply  the  defect.  1  Wash.  29U.  0 
Mun.  212.  11  Vez.  400.  17  Vez.  242.  19  Vez.  431.  See,  however,  1 
Wash.  32(5.  The  choice  of  the  umpire  sliould  be  fair  and  impartial:  it 
has  been  said  it  should  not  be  left  at  all  to  chance  ;  so  that  where  each  ar- 
bitrator named  an  umpire,  but  agreed  on  neither,  and  decided  by  lot  which 
nominee  should  prevail,  it  was  held  a  bad  appointment.  2  Vern.  485. 
Though  this  decision  seems  to  have  been  overruled  in  a  very  late  case.  16 
East,  51.     Sed  vide,  3  Barn.  &  Cr.  405. 

The  submission  or  agreement  of  the  parties  being  the  law  of  each  par- 
ticular case,  it  furnishes  the  rule  as  to  the  time  and  manner  of  appointment 
of  the  umpire,  and  must  be  strictly  pursued.  Much  uncertainty  seems  to 
liave  prevailed  on  this  subject,  but  I  think  it  may  at  last  be  considered  as 
settled,  that  unless  the  submission  ])rovides  otherwise,  the  arbitrators  may 
nominate  the  umpire  even  before  they  proceed  to  consider  the  subject  re- 
ferred;  2  T.  R.  (515.  Kyd,  87;  see,  however,  4  Taun.  232,  where  it  is 
said  that  if  the  l)ond  be  "  that  if  the  arbitrators  do  not  make  their  award 
by  a  day  named,  ih'^n  they  shall  appoint  an  umpire,"  the  power  to  choose 
commences  when  that  of  their  making  an  award  ends.  But  even  in  such 
a  case  it  seems  that  after  their  disagreement,  though  before  their  time  ex- 
pires, they  may  ap])oint  an  umpire  :  3  M.  8c  S.  550  :  and  so  even  after  their 
time  expires,  provided  it  be  before  the  time  limited  for  iiini  to  act.  Kyd, 
88.     15  East,  55G. 

It  sometimes  happens  that  a  time  is  limited  for  the  award  with  a  power 
in  the  arbitrators  to  enlarge  it.  In  such  case  they  may  enlarge  it,  and  the 
award  is  good  if  made  within  tlie  enlarged  time,  though  it  docs  not  recite 

"  II  in  ;i  nilp  of  \nw,  lliat  every  species  of  .■iiillioiily,  l)cii)K  ;i  ilele[;;ileil  power,  alllioiiyli  hy  express 
words  iii:i>l<;  irr(;vi)c;il)le,  is  ikjvimiIicIcks  in  i;iiici:il  rcvociiMc.  Se<'  u  Co.  iJJ.  A  siihiiiit-sioii  to  arlii- 
Iruliun  rii;iy  he  revoUed  liy  ilie  :i(!i  of  (iod,  liy  (iper;ilioii  id'  hiw,  or  l)y  tlio  act  of  tlio  parties. 

'I'lie  </e<itli  of  cither  or  any  id'  tin-  parlies  Ijcfore  llic  award  in  delivereil,  in  aeiierai  vacates  lliesiil)- 
inission,  nidc.».s  it  coiitaJii  a  siipiilalion  m  llie  conlriiry  ;  sec  I  iMarsli.  iiliC.  7  Taiin.  571.  I  IMoore, 
:io7,  S.  C  L'  15.  vV  A.  .'JUt ;  Iml  wlii-rc  all  mailers  in  rllflcii'iice  in  a  canse  arc  reli^rrcd  l)y  order  of 
nisi  priilK  to  nrl)ilralioii,  llicilealli  nfmie  (d  llic  (larties,  at  any  tinu;  before  award  made,  is  a  revo- 
cation of  till'  ai  liilralorV  ;iMlli>ir>lv.  anil  lli<;  <:onrt  will  set  aside  an  award  made  after  Iiis  deatli ;  or, 
in  other  wonl.s,  it  .-Imnld  scrm,  il  ihc  r.an.^e  of  action  is  referred,  the  ilcalli  aliates  the  aciimi,  Liiit  not 
bo  if  other  inaltcrd  l)c."iile.''  l!ie  canse  of  aelion  are  referred.    3  I).  iV,  II.  COo.     ~  I>.  <&  A.  ."J'J I. 

If  a  feine-HolcHuhmit  to  ailiilralion,  and  many  l)clbre  llic  awrnd  i".  ddivcied,  sneli  ni(irri(tne  if:  in 
(•fleet  a  revocation,  withoui  iioiiee  lo  tin:  ailiiiralorii;  'J  Keb.  ;>ii.!i.  Jones,  3uJ.  Roll.  Arb.  ;ttl  ;  but 
llic  liusbaiitl  and  wife  iiiav  be  sued  on  their  bond  forsugli  icNoliinij.    0  Euct,  'XC.  CltUli/, 


CHAP.  2.}  ARBITRATORS.  O^ 

that  the  time  was  enlarged.  8  East,  13.  It  seems,  also,  they  may  enlarge' 
the  time  more  than  once  ;  7  Taun.  599  ;  unless  restricted,  I  presume,  by 
the  submission  :  and  where  they  were  authorized  to  enlarge  it  "  to  any 
other  day,'"  the  court  expounded  it  to  mean  "  to  any  other  days."  4  Taun. 
658.  So  the  parties  may  themselves,  by  subsequent  agreement,  enlarge  the 
time  ;  1  Wash,  11,  14;  for  the  submission  may  be  by  them  yet  more  ma- 
terially altered;  as  where  a  suit  pending  was  referred,  and  the  parties  by 
agreement  under  seal  afterwards  agreed  to  substitute  another  person  for  one' 
of  the  arbitrators,  and  that  the  award  to  be  made  by  him  and  the  other  re- 
ferees should  be  made  the  judgment  of  the  court,  the  award  was  so  enter- 
ed without  any  previous  order  confirming  his  appointment.  5  Mun.  493. 
But  it  must  be  observed,  that  in  case  of  submission  by  bond,  though  the  time 
is  enlarged  by  consent  of  parties,  an  action  will  not  lie  on  the  bond  if  the 
award  be  made  after  the  original  time  limited.     Kyd,  311.     3  T.  R.  592. 

Though,  as  we  have  said,  the  submission  is  the  law  of  each  case,  and 
must  govern,  yet  if  a  case  be  referred  in  general  terms  to  three  or  more  per- 
sons, the  majority  of  those  nominated  may  decide  ;  Kyd,  106;  though  all 
should  regularly  be  present,  unless  any  one  or  more  refuse  to  attend.  Kyd, 
107.  1  Dall.  364.  But  according  to  the  maxim  modus  et  conventio  vincunt 
legem,  the  contract  of  the  parties  may  control  these  principles  ;  for  where,- 
in  a  suit  pending,  tliere  was  a  reference  by  rule  of  court  to  four  arbitra- 
tors, whose  award,  or  that  of  any  three  of  them,  was  to  be  final,  and  at  a 
subsequent  court  two  others  were  added  :  an  award  by  two  of  the  first 
named  and  one  of  the  last,  was  adjudged  good,  though  it  might  thus  have 
happened  that  two  conflicting  awards  might  have  been  made.  2  Call,  106. 
If  there  be  a  submission  to  four  and  the  umpirage  of  a  fifth,  a  joint  award 
by  the  five  is  good.  Kyd,  105.  The  arbitrators  joining  with  the  umpire  in 
the  award  does  not  vitiate  it.     4  Taun.  432. 

"  Proceedings  by  the  arbitrators."  'Where  the  arbitrators  have  consent- 
ed to  serve  as  such,  a  time  and  place  of  trial  should  be  appointed,  and  no- 
tice given  to  the  parties,  (Kyd,  95,)*  and  then  they  may  proceed  in  the  ab-' 
sence  of  either.  Kyd,  100.  12  Vez.  412.  Where  the  submission  or  re- 
ference is  by  rule  or  order  of  court,  the  parties  may  procure  subpoenas  for 
their  witnesses  from  the  clerk  of  the  court,  and  if  they  do  not  attend,  they 
are  subject  to  fine,  or  if  they  attend  and  refuse  to  give  testimony,  they  may 
be  imprisoned  by  the  referees.  1  Pt,.  C.  ch.  131,  §  4,  5,  8.  But  there  seems 
to  be  no  power  to  compel  the  attendance  of  witnesses  except  in  such  ca- 
ses. The  arbitrators  examine  the  witnesses  and  documents  as  far  as  they 
find  necessary,  and  may  examine  either  party  if  they  please,  where  the  sub-' 
mission  so  provides,  (2  Taun.  324,)  or  call  for  any  oth'er  information  they 
deem  impoxtant,  and  adjourn  from  time  to  time,  giving  notice  of  the  time 
and  place  of  each  subsequent  meeting  ;  provided,  nevertheless,  that  their" 
award  be  made  within  the  time  required  by  the  submission.  Eyd,  95,  G6. 
If  they  disagree,  and  have  power  to  appoint  an  umpire,  they  must  do  so, 
and  when  he  is  appointed,  his  duties  are  the  same  as  their's,  anterior  to  his 
appointment.  And  though  it  has  been  decided,  (4  T.  R.  539,)  that  it  will 
suffice  if  he  make  up  his  award  on  hearing  a  detail  of  the  evidence  from 
the  arbitrators  themselves,  unless  the  party  applies  to  him  and  requests  him 
to  hear  the  witnesses,  yet  this  opinion- has  been  questioned  in  the  Penn- 
sylvania courts,  and  seems  inconsistent  with  general  principles.  The  courts 
in  England,  indeed,  have  also  decided  that  though  arbitrators  examine 
witnesses  without  swearing  them,  it  is  no  valid  objection  to  the  award 
unless  the  objection  be  made  at  the  time.  1  Bos.  &  Pull.  91.  These  de- 
cisions have  not  yet  been  directly  the  subject  of  examination  in  our  courts  ;- 

•This,  though  admitted  to  be  a  general  lule,  is  said  not  to  be  universal.    3  Kan.  6. 
VOL.  2—5 


34  AWARD.  [noOK  3. 

though  it  has  been  decided  in  general  terms,  that  if  an  arbitrator  admits  il- 
legal ovidGnce,  his  award  may  be  set  aside.     1  Wash.  193. 

When  the  award  is  made,  if  the  submission  is  not  by  bond,  but  by  parol, 
or  if  it  be  by  bond  and  the  condition  requires  the  delivery  of  the  award  to 
the  parties  by  a  certain  day,  notice  must  be  given  to  the  party ;  and  as  it 
has  been  a  matter  of  much  litigation,  whether,  in  the  case  of  a  submission 
by  bond  without  such  express  terms  in  the  condition,  notice  be  necessary, 
it  is  always  prudent  and  proper  so  to  provide.      Kyd,  115. 

After  the  award  has  been  once  made  and  ready  to  be  delivered  or  pro- 
nounced, it  cannot  be  changed  by  the  arbitrator,  for  heis  functus  officio.  6 
East  Rep.  309.  And  it  ought  to  be  final  and  certain,  and  without  a  reser- 
vation of  farther  power  over  the  subject,  either  to  himself  or  a  stranger. 
For  an  award  to  A  of  a  horse,  and  if  he  cannot  be  had,  then  of  so  much 
as  B  shall  say  he  was  worth,  is  bad,  for  the  act  to  be  performed  by  B  is  it- 
self of  a  judicial  character.  But  an  award  that  A  shall  pay  $10  for  every 
acre  of  land  he  bought  of  B,  the  quantity  to  be  ascertained  by  the  surveyor 
of  the  county,  is  good,  for  the  act  is  ministerial.  Kyd,  125,  127.  So,  too, 
the  power  of  an  arbitrator  is  incapable  of  being  delegated  ;  yet  if  he  settles 
the  principle,  and  leaves  only  the  form  to  be  settled  by  another,  or  the  a- 
mount  of  a  sum  to  be  calculated,  it  is  good  :  as  where  he  awards  a  deed  to 
be  made.  Kyd,  \-29.  And  it  has  been  decided  that  an  award  will  not  be 
set  aside  because  the  arbitrator  makes  use  of  the  judgment  of  another  per- 
son. 5  Vcz.  84S.  So,  though  it  is  now  clear  that  where  a  suit  is  referred, 
arbitrators  may  award  costs,  (2  T.  R.  044,)  yet  the  costs  of  the  court  are 
to  be  taxed  by  the  proper  officer  of  the  court,  and  need  not  be  ascertained 
by  the  arbitrator.  See  1  Call,  575.  The  costs  of  the  reference,  if  award- 
ed, ought  to  be  ascertained  by  the  award.  Kyd,  135,  136.  If  the  award 
says  nothing  of  costs,  the  court  will  adjudge  them  to  the  prevailing  party. 
2  Call,  106. 

The  award  must  be  made  within  the  time  limited  by  the  submission. 
It  may  be  made  on  the  day  of  the  submission,  or  at  any  time  before  midnight 
of  the  day  preceding  that  before  which  it  is  limiled  to  be  made.  Kyd, 
137. 

V.  We  come  lastly  to  the  subject  of  the  award,  which  we  shall  consider 
in  several  aspects  as  they  are  presented  by  its  essential  properties.  It  must 
be  within  the  submission,  yet  not  of  parcel  only  of  the  things  submitted. 
It  must  be  something  beneficial  to  the  one  party,  and  possible,  legal,  and 
even  reasonable,  as  it  respects  the  other:  and  it  must  fulfil  the  end  and  ob- 
ject of  the  submission  by  being  certain  and  final,  while  it  accomplishes  the 
purposes  of  justice  by  being  mutual. 

1.  It  must  be  wilhin  the  sulimission  :  for  a  reference  of  a  particular  con- 
test does  not  justify  an  award  as  to  other  things.  Kyd,  141.  Yet  it  has 
long  been  settled,  that  where  the  award  is  good  as  to  part,  and  void  as  to  the 
residue,  the  performance  of  that  which  is  good  may  be  enforced  ;  Ibid,  243  ; 
provided  it  is  not  so  connected  with  the  residue  as  to  produce  injustice,  for 
then  the  whole  is  void.  Ibid,  216.  So,  also,  the  whole  will  be  void  if  mat- 
ters within  the  submission  are  blended  with  other  matter,  and  an  aggregate 
sum  is  awarded  to  be  paid,  or  an  entire  act  to  be  done,  on  account  and  in 
consideration  of  them.  Ibid,  219.  As  if  A,  executor  of  B,  submit  a  dis- 
pute between  his  testator  and  C  to  arbitration,  and  the  arbitrator  awards 
$100  in  full  of  all  claims  of  A  in  his  own  right,  or  as  executor  against  C, 
without  distiiiLruishing  the  amount  of  each,  the  whole  award  is  void.  Yet 
where  the  suljinission  is  of  things  real,  an  award  of  a  sum  of  money  in  sa- 
tisfaction may  be  good.  Ibid,  147.  If  two  partners  refer  all  matters  in 
difference  between  them,  the  arbitrator  may  award  a  dissolution  of  the 
partnership.     Ibid.  MU.     IBl.Kcp.475.     And  so  he  may  order  indentures 


CHAP.  2.]  "  AWARD.  35 

to  be  delivered  up,  on  a  dispute  between  master  and  apprentice.  An  arbi- 
trator may  also  award  costs  without  express  authority  ;  2  T.  R.  644  ;  and 
as  well  the  costs  of  the  arbitration,  as  tlie  costs  of  the  cause,  but  the  former 
he  must  himself  ascertain  by  his  award,  though  the  latter  may  be  taxed  by 
the  clerk. 

We  have  thus  seen  that  an  award  must  not  embrace  a  matter  that  is  out 
of  submission.  Neither,  it  has  been  said,  should  it  embrace  a  person  not 
within  it,  if  it  award  an  act  to  be  done  by  or  to  him ;  unless  in  the  latter 
case  the  act  is  to  benefit  the  other  party  to  the  award,  for  then  it  is  good. 
As  where  it  is  awarded  that  A  shall  pay  to  C,  a  stranger,  |.50  for  B,  the 
other  party  to  the  award.  Yet  a  distinction  has  since  been  reasonably  ta- 
ken between  the  award  of  an  act  to  be  done  by  a  stranger,  and  of  some- 
thing to  be  done  to  him,  the  latter  being  held  good  upon  the  presumption 
that  the  act  to  be  done  to  him  by  one  party,  is  for  the  benefit  of  the  other. 
Ibid,  156,  159,  160.     1  Call,  575—578. 

2.  The  award  must  not  be  of  parcel  only  of  the  things  submitted ;  as 
where  there  are  several  matters  of  contest  submitted  specifically,  and  the 
arbitrator  decides  one  without  deciding  the  rest,  this  is  void  ;  7  East,  81 .  Kyd, 
175;  for  if  connected  together,  then  injustice  must  have  been  done;  and 
even  if  unconnected,  yet  the  decision  of  those  which  are  omitted  might  havo 
balanced  those  on  which  he  has  pronounced  judgment.  As  where  there  is 
a  reference  of  mutual  trespasses,  the  arbitrator  may  award  that  each  party 
shall  be  quit  against  the  other,  because  the  trespasses  were  equal ;  Kyd, 
193 ;  and  the  purpose  of  the  submission  is  defeated  unless  the  arbitrator 
decides  on  all.  But  where  there  is  a  general  reference  of  all  matters  of 
difference,  although  there  be  many  subjects  of  controversy,  yet  if  the  parties 
bring  only  one  before  the  arbitrator,  it  is  good.  And  this  will  be  presumed 
till  the  contrary  is  shown.  Kyd,  176.  Indeed,  the  decision  of  an  arbitra- 
tor, though  apparently  only  on  a  single  point,  may  in  effect  be  on  more  than 
one,  as  the  judgment  on  that  may  be  a  negation  as  to  others.  Thus,  if  A 
and  B  have  cross  actions  of  assault  and  battery  for  the  same  fight,  an  award 
to  A  is  in  effect  a  negation  of  the  right  of  action  of  B.  See  1  Saun.  32. 
So  of  accounts.  2  Call,  106.  If,  however,  the  arbitrator  really  omit  to  de- 
cide on  any  point  or  matter  in  dispute,  though  the  award  may  be  good, 
yet  may  the  party  have  his  action,     4  T.  R.  146,  147,  in  notes. 

3.  An  award  must  not  be  of  any  thing  against  law,  for  if  so,  it  is  void, 
and  the  parties  are  not  bound  to  perform  it.     Kyd,  184.     So 

4.  An  award  of  ivhat  is  impossible,  either  physically  or  morally,  is  void  : 
as  an  award  that  the  party  shall  deliver  up  a  deed  which  is  in  the  power  of 
one  over  whom  he  has  no  control :  or  that  he  shall  compel  a  third  person  to 
an  act ;  unless,  indeed,  the  third  person  is  under  his  control,  or  can  be 
compelled  by  suit  to  do  it,  as  in  the  case  of  a  trustee.  Kyd,  185,  188.  .  So 
it  is  said  an  award  that  he  shall  procure  a  stranger  to  join  him  in  a  bond,  is 
void,  since  he  cannot  compel  the  stranger.  Kyd,  185.  Yet,  I  should  pre- 
sume, an  award  that  the  party  should  enter  into  bond  with  security,  is  good. 
And  even  in  those  cases  where  the  award  would  not  be  good,  because  of  its 
requiring  an  act  to  be  procured  to  be  done  by  a  stranger,  yet  if  it  be  in  the 
alternative  it  would  be  good.  Kyd,  203,  204.  As  an  award  that  A  shall 
procure  B  to  make  a  good  title  to  land  on  or  before  a  certain  day,  or  in  de- 
fault  thereof  that  he  shall  pay  $100. 

5.  The  award  must  be  reasonable.  To  award  that  one  party  shall  serve 
the-otheras  a  menial,  or  shall  do  an  act  which  would  subject'him  to  an  ac- 
tion, is  void.     Kyd,  189,  190. 

6.  The  award  must  be  of  something  advantageous;  for  if  it  be  a  mere 
charge  on  one  without  benefit  to  the  other,  it  is  void.     Mutual  releases,  how- 


86  AWARD.  [book  3. 

ever,  are  advantageous  to  both,  and  an  award  of  them  is  therefore  good. 
Kyd,  191,  192. 

7.  The  intention  of  all  judicial  decisions  is  to  ascertain  the  rights  of 
the  parties  ;  hence  an  award  must  be  certain  or  it  will  be  void.  Kyd,  194. 
It  is  scarcely  necessary  to  enter  into  a  detail  of  the  cases  in  support  of  this 
obvious  principle.  It  must,  however,  be  remarked,  that  if  the  supposed  un- 
certainty can  be  removed  either  by  the  context  of  the  award,  or  from  the 
nature  of  the  thing  awarded,  or  by  obvious  reference  to  something  con- 
nected with  it,  the  objection  will  not  prevail.  Kyd,  198.  Nor  is  an  award 
in  the  alternative  subject  to  an  objection  for  uncertainty,  nor  an  award  of 
payment  of  money  where  no  time  or  place  is  fixed  for  payment  ;  for 
the  place  is  immaterial,  and  a  demand  in  a  reasonable  time  will  entitle  the 
party  to  recover.  In  some  cases,  too,  an  averment  v/i\\  help  the  uncer- 
tainty ;  as  in  an  av/ard  that  the  party  shall  pay  the  legal  costs  of  a  certain 
suit,  an  averment  in  the  declaration  tiiat  they  amounted  to  so  mudi,  will 
gupport  it. 

8.  The  award  must  be  final ;  for  a  termination  of  the  litigation  is  the 
chief  object.  An  award  that  the  party  shall  suffer  a  nonsuit,  is  therefore 
said  to  be  void  ;  for  that  will  not  prevent  his  suing  again.  Sed  Qiimre  :  for 
not  only  is  an  award  that  the  plaintiff  shall  enter  a  retraxit,  a  good  award ; 
but  an  award  that  he  shall  discontinue  his  suit,  or  that  all  suits  shall  cease, 
or  that  a  bill  in  chancery  shall  be  dismissed,  is  also  considered  final  and 
therefore  valid.  Kyd,  208,  cic.  And  so  where  a  suit  pending  is  referred, 
an  award  that  judgment  shall  be  entered  against  the  plaintiff  is  sufficient- 
ly final. 

9.  The  tward  must  he  mutual;  not  that  it  is  necessary  that  money  or 
other  thing  should  be  awarded  to  each  ;  for  it  appears  by  the  general  tenor 
of  the  award,  that  the  thing  awarded  to  be  done,  or  the  money  awarded  to 
be  paid  to  one  party,  is  in  satisfaction  of  injuries  done  to  him  by  the  other, 
this  is  mutual :  since,  while  one  recovers  damages  for  the  injury,  the  other 
upon  payment  of  them  is  discharged  of  an  action  to  which  he  was  liable. 
Thus  there  is  an  equivalent.  Nor  is  it  now  deemed  necessary  that  a  re- 
lease of  actions  should  be  awarded  to  be  given  by  the  parly  injured,  or  that 
any  words  of  discharge  should  be  used  in  the  award,  since  that  will  be  im- 
plied if  it  appears  that  the  thing  awarded  was  a  recompense  for  injury. 
Kyd,  2-25,  226. 

Indeed,  in  modern  times,  the  ancient  strictness  in  the  construction  of 
awards  on  all  these  points,  is  deservedly  discountenanced,  and  the  rule  at 
this  day  is  to  construe  all  awards  with  great  liberality.  1  Bur.  277.-  So 
that  if  any  necessary  matter  is  omitted,  which  yet  appears  manifestly  by 
implication,  it  shall  be  supplied.  Kyd,  230.  And  if  there  be  any  ambiguity 
in  the  language,  it  is  to  be  so  construed  as  to  give  effect  to  the  award;  Kyd, 
2^33  ;  or  if  there  be  a  misrecital  of  the  submission,  it  will  not  vitiate,  provi- 
ded it  be  suiTicicntly  ascertained,  and  the  award  is  within  it;  though  a  mis- 
recital  of  the  date  of  the  order  of  reference  seems  to  be  fatal.  2  Wash. 
70.  To  direct  a  release  up  to  the  date  of  the  award,  is  in  strictness  not 
good;  for  tli.it  might  include  matters  subsequent  to  the  submission,  which 
.ire  not  referred  by  it;  yet  where  such  release  is  awarded,  it  will  be  presu- 
med (unless  the  contrary  appears)  that  there  has  been  no  dispute  between 
the  j)arties  since  the  submission  ;  or  even  if  that  ap))cars,  the  arbitrator's 
meaning  will  be  controlled  so  far  as  it  is  void  by  construction  of  law.  Kyd, 
242. 

Form  of  the  ovard.  ^Vhore  the  submission  is  verbal,  unless  there  be  a 
provision  that  the  award  shall  be  in  writing,  a  verbal  award  will  suflice. 
Kvd,  261.  The  same,  indeed,  is  said  if  the  submission  be  by  bond  ;  Ibic|, 
262;  but  it  must  not  be  forgotten,  tliat  whatever  the  submission  requires 


CHAP.  2.]  AWARD.  87 

should  be  done,  whether  it  respects  the  time  or  manner  of  delivery,  or  the 
form  of  the  award,  or  the  siffuing  or  sealing,  or  any  other  matter.  The 
form  of  the  award  seems  not  important  if  it  be  substantially  in  conformity 
with  the  requisitions  of  law  and  of  the  submission.  See  "2  H.  &,  M.  544. 
4  H.  &  M.  aG3. 

Performance  of  the  award.  An  exact  performance  according  to  tlie  very 
words  of  the  award,  is  not  necessary  ;  for  an  acceptance  by  the  other  par- 
ty of  a  different  performance  is  good,  and  indeed  a  substantial  performance 
is  always  sufficient.  Thus  a  discontinuance  of  a  suit  is  a  sufficient  perform- 
ance of  an  award  that  the  party  shall  enter  a  retraxit ;  for  though  it  is  not  a 
retraxit,  it  will  be  a  good  performance  unless  he  recommence  his  action  ; 
and  if  he  does  so,  there  will  then  be  a  breach  of  the  award.  Kyd,  264, 
207.  So  an  award  to  pay  money  to  A,  is  well  satisfied  by  payment  to  his 
executor  in  case  of  his  death.  It  may  sometimes  be  a  question  who  shall 
do  the  first  act ;  but  as  this  generally  depends  upon  principles  similar  to 
those  which  govern  in  cases  of  covenant  and  conditions,  I  shall  not  here 
enter  into  the  enquiry.  I  shall  only  observe,  that  generally  where  it  is 
awarded  that  one  party  pay  a  sum  of  money  to  the  other  as  a  compensation 
for  an  injury  done,  and  that  the  other  release  the  action,  the  money  must 
be  first  paid.  If  money  be  awarded  and  no  day  of  payment  limited,  it  must 
be  paid  within  a  reasonable  time,  nor  is  a  request  necessary  before  the  par- 
ty to  whom  it  is  payable  can  bring  his  action  for  it.     Kyd,  268. 

The  remedy  to  compel  performance.  This  is,  I.  By  action  at  law.  2.  By 
bill  in  equity.     3.  By  attachment. 

I.  By  action  at  law.  This  varies  according  to  circumstances.  If  the 
submission  be  by  parol,  the  party  may  either  bring  debt  upon  the  award 
itself  where  it  is  for  payment  of  money,  even  though  it  be  verbal,  or  he  may 
bring  an  action  of  assumpsit ;  but  in  all  cases  of  verbal  awards,  except  for 
payment  of  money,  assumpsit  is  the  most  proper  action.  In  either  case,  care 
must  be  taken  to  state  the  submission  with  substantial  correctness,  (Kyd, 
291,)  for  if  there  be  any  material  variance  between  the  agreement  to  sub- 
mit, as  set  out  in  the  declaration,  and  the  evidence  in  support  of  it,  the 
plaintiff  will  be  nonsuited.  Equal  care  must  be  taken,  as  has  been  said, 
that  the  award  corresponds  with  the  submission,  for  unless  they  concur,  the 
plaintiff  must  fail,  otherwise  the  defendant  would  be  subjected  to  an  arbi- 
tration without  his  assent.  The  difficulty  of  sufficiently  ascertaining  by 
oral  testimony  the  character  of  a  submission,  renders  it  extremely  impru- 
dent to  enter  into  arbitrations  without  a  written  submission ;  and  the  like 
reason  prevails  in  behalf  of  a  provision  in  all  submissions,  that  the  award 
shall  be  delivered  in  writing,  though  less  exactness  is  necessary  in  setting 
forth  verbal  than  written  awards  and  submissions.     Kyd,  291. 

Where  the  submission  is  by  bond,  and  the  award  is  for  payment  of  mo^ 
ney,  assumpsit  will  not  lie  to  recover  the  amount  awarded,  as  the  simple 
contract  is  merged  in  the  specialty  ;  but  debt  must  be  brought  on  the  bond, 
or  on  the  award  itself;  for  that  also  will  lie.  But  \{  money  is  not  award- 
ed, the  action  must  be  on  the  bond  ;  and  as  many  breaches  of  the  award 
may  be  assigned  as  the  plaintiff  can  show,  for  he  is  entitled  to  damages  for 
all.  This  assignment  of  breaches  is  indeed  the  essence  of  the  action.  Kyd, 
292.  The  action  on  the  bond  is  more  usual  than  on  the  award,  even  where 
money  is  awarded.  In  this  action  the  declaration  may  be  in  the  usual  form 
of  declarations  on  ordinary  bonds,  taking  no  notice  of  the  condition :  or 
the  condition  may  be  set  out  and  the  breach  assigned.  In  the  former  case, 
the  defendant,  if  he  wishes  to  contest  the  recovery,  prays  oyer  of  the  con- 
dition, which  being  set  forth,  he  may  plead  a  variety  of  matters;  such  as 
"  performance  of  the  award ;"  or  "  that  there  was  no  award  ;"  or  "that  it 
)vas  not  made  before  the  day  assigned  ;"  or  (where  notice  is  necessary  tp 


38  AWARD.  [  BOOK  3. 

entitle  the  plaintifT  to  his  action,)  (sec  2  Saun.  G3,  a.  n.  4,)  he  may  plead 
"he  had  no  notice  ;"  and  by  our  law  he  may  plead  all  these  several  incon- 
sistent pleas  at  the  same  time.  If  he  pleads  "no  award,"  the  plaintiff  in 
his  replication  sets  out  the  award  at  large,  and  assigns  the  breach.  If  the 
defendant  denies  that  the  award  as  set  out  has  been  made,  he  rejoins  that 
the  arbitrators  "made  no  such  award,"  and  here  the  plaintiff  must  join 
issue.  If  the  award  set  out  varies  from  the  submission,  the  defendant  de- 
murs and  sets  out  the  variance,  and  the  plaintiff  joins  issue  upon  the  legal 
question.  If  the  defendant  pleads  the  award  was  not  made  in  time,  the 
plaintiff  in  his  replication  alleges  that  it  was,  and  the  defendant  takes  issue 
on  the  fact.  If  the  defendant  denies  notice,  (where  notice  is  necessary,) 
he  must  do  it  by  his  plea,  and  cannot  be  permitted  to  allege  want  of  notice 
in  his  rejoinder,  after  having  in  the  pica,  in  that  branch  of  the  pleading  in 
which  he  files  a  rejoinder,  denied  the  award  itself — for  this  is  a  departure 
from  the  plea,  which  denied  the  very  existence  of  the  award.  Where  the 
plea  denies  notice,  the  plaintiff  may  demur  if  he  thinks  it  a  case  in  which 
notice  is  unnecessary;  or  if  the  defendant  had  notice,  the  plaintiff  replies 
that  he  had,  and  on  this  the  defendant  takes  issue.  If  in  such  case  the  ver- 
dict is  for  the  defendant,  yet  it  will  not  bar  a  future  action  after  notice  given. 
(Kyd,  ^^97.) 

In  the  plaintiff's  replication  he  must  always  show  that  the  award  is  pur- 
saant  to,  and  made  in  conformity  with,  the  requisitions  of  the  submission  ; 
and  in  like  manner  if  by  the  award  any  pre-requisite  is  to  be  performed  by 
him  to  entitle  him  to  his  action,  he  must  aver  and  set  forth  performance,  or 
a  tender,  where  that  will  sutRce.  There  is  some  nicety  as  to  this,  which 
ivill  furnish  a  subject  for  the  student's  investigation.     See  Kyd,  260,  Sec. 

"  If  the  plaintiff  sets  forth  the  award  with  a  profert  in  curia,  the  defen- 
dant craves  oyer,  and  demurs  for  the  variance  ;  if  the  plaintiff  set  forth  the 
award  without  the  profert,  the  defendant  answers  "  no  such  award,"  on 
which  issue  is  joined :  if,  on  the  demurrer,  the  award  set  forth  vary  mate- 
rially from  the  real  award,  judgment  will  of  course  be  given  against  the 
plaintiff:  if,  on  the  issue  joined,  the  award  set  forth  differ  materially  from 
that  given  in  evidence  the  judge  will  direct  the  jury  to  find  for  the  defen- 
dant ;  if  there  be  no  material  variance,  in  the  one  case  judgment,  and  in 
the  other  a  verdict,  will  be  given  in  favor  of  the  plaintiff.  In  the  case  of  a 
general  verdict  in  his  favor,  it  must  be  presumed  that  there  was  no  material 
variance  ;  if,  at  the  trial,  it  be  doubted  whether  the  variance  be  material  or 
not,  a  special  verdict  may  be  taken,  and  the  question  argued  in  court,  as  on 
a  demurrer."     Kyd,  269. 

Where  the  award  is  verbal,  the  defendant  to  an  action  of  debt  or  assump- 
sit on  the  award  may  plead  "that  he  did  not  submit ;"  but  in  an  action  on 
the  bond  he  cannot,  for  he  is,  in  the  law  phrase,  estopped  to  deny  what  the 
bond  and  the  condition  of  it  prove.  If,  indeed,  he  never  scaled  and  deliver- 
ed the  bond,  he  may  plead  "  non  est  factum,^'  but  to  the  truth  of  this  plea 
he  must  make  oath  ;  or  if  he  thinks  that  the  arbitrators  have  decided  upon 
a  matter  not  submitted,  he  must,  instead  of  denying  the  submission,  demur 
for  the  variance,  and  point  it  out. 

In  assigning  the  breaches  of  an  award,  it  may  be  here  observed,  that 
whether  in  assumpsit  or  in  an  action  of  debt  on  the  bond,  and  whether  tho 
award  be  for  payment  of  money,  or  for  any  collateral  matter,  the  plaintiff 
may  assign,  and  ought  to  assign  as  many  breaches  as  he  can  establish.  This 
is  admitted  as  to  assumpsit  jjy  Mr.  Kyd,  pa.  271),  but  not  so  as  to  an  action 
on  the  bond  where  the  award  is  not  for  payment  of  money.  The  reason 
assigned  is,  that  the  bond  is  as  much  forfeited  l)y  one  breach  as  by  twenty, 
and  Mr.  Kyd  seems  to  think  the  statute  of  ^Villianl  o,  from  which  ours  (1 
R.  C.  ch.  128,  §  82,)  is  taken,  does  not  embrace  the  case  of  awards.     No 


CHAP.  2.]  AWARD.  39 

aulhoriry  is  cited  for  this  ;  nor  docs  there  seem  to  be  any  foundation  for  the 
opinion.  Since  the  case  of  Rolls  vs.  Roswell,  (5  T.  R.  53G,)  indeed,  the 
contrary  seems  to  be  the  law  in  England,  and  it  is  universally  so  understood 
among  us.  See  the  form  of  the  replication  setting  out  several  breaches,  2 
Chitty,  G19. 

In  the  assignment  of  the  breaches,  however,  some  circumspection  is  ne- 
cessary ;  thus,  breaches  should  not  be  assigned  in  a  part  of  the  award  which 
is  void,  and  also  in  a  part  which  is  valid ;  for  then  a  general  judgment  would, 
at  common  law,  have  been  arrested  ;  and  though,  perhaps,  it  may  be  cured 
by  thd.t  paimcea — our  late  statute  of  Jeofails — yet  such  assignment  will  still 
be  had  on  demurrer.  The  breach,  therefore,  should  be  assigned  only  in 
that  part  of  the  award  which  is  good.  If  a  time  and  place  be  appointed  for 
payment  of  money,  the  plaintiff  must  shew  that  he  attended  between  the 
appointed  hours,  and  continued  till  the  last  moment.  If  money  is  awarded 
to  be  paid  on  request,  a  special  demand  must  be  expressly  stated,  and  the 
usual  allegation  of  licet  sczpe  requisitus  will  not  suffice  ;  and  if  the  award 
is  in  the  alternative,  the  plaintiff  must,  in  assigning  the  breach,  negative  the 
performance  of  both  branches  of  it.     Kyd,  296. 

The  defendant,  as  has  been  observed,  may  plead  performance,  and  in 
doing  this  he  need  only  aver  performance  of  so  much  of  the  award  as  iS' 
good,  and  take  no  notice  of  what  he  thinks  bad.  If  the  plaintiff  thinks 
that  which  is  pretermitted  is  also  good,  he  demurs  to  the  plea,  and  thus  the 
legal  question  is  brought  before  the  court.  In  pleading  performance,  he,  in 
general,  need  only  do  so  in  the  language  of  the  award  itself;  but  where  the 
award  is  in  the  alternative,  he  must  shew  specially  which  branch  of  the  al- 
ternative he  has  performed.  Kyd,  301.  He  may  also  plead  a  tender  and 
refusal,  but  this  is  one  of  the  cases  in  which  it  is  essential  he  should  add 
that  he  is  still  ready  to  perform.  So  if  a  precedent  act  is  to  be  done  by  the 
plaintiff,  he  may  rely  upon  this,  and  aver  the  plaintiff's  non-performance, 
and  his  own  readiness  to  perform  as  soon  as  the  plaintiff  has  fulfilled  the 
pre-requisite. 

2.  We  come  next  to  the  means  of  compelling  performance  of  an  award 
by  a  bill  in  equity.  The  aid  of  courts  of  equity  in  these  cases  is  usually 
sought  where  the  remedy  at  law  is  inadequate  ;  4  Ran,  95;  or  where  a  col- 
lateral act  is  awarded, — as  the  conveyance  of  land  ;  for  such  cases  partake 
of  the  character  of  a  bill  for  specific  performance  of  an  agreement  to  con- 
vey, and  will  be  entertained  where  any  thing  is  awarded  to  be  done  in  spe- 
cie, (1  Wash.  290,  295,)  provided  the  award  is  valid;  and,  indeed, 
though  the  award  may  not  be  valid,  yet  if  there  has  been  a  long  acquies- 
cence by  the  defendant,  and  part  performance  by  the  complainant,  the  award 
will  not  be  permitted  to  be  disturbed,  but  on  the  contrary  will  be  enforced. 
1  Mad.  .337.     Kyd,  322. 

3.  Enforcing  performance  by  attachment.  This  method  seems  to  have 
existed  anterior  to  the  statute  of  William  III.  on  arbitraments,  and  to  have 
grown  out  of  the  practice  of  referring  matters  to  arbitration  under  a  rule  of 
court.  It  was  adopted  with  reluctance  at  first,  though  it  was  afterwards 
used  with  improper  freedom.  Kyd,  311,  318.  It  rested  upon  the  suppo- 
sition that  a  refusal  to  pay  money  awarded  by  arbitrators  under  a  rule  of 
court,  is  a  contempt  of  court.  This  is,  indeed,  most  unsubstantial  ground, 
since  the  refusal  to  pay  a  debt  ascertained  by  verdict  and  judgment,  is  a 
case  at  least  equally  strong,  but  never  was  tortured  into  a  contempt.  In 
chancery,  indeed,  such  a  proceeding  is  adopted  for  disobedience  of  a  de- 
cree ;  but  it  is  rarely  used  with  us  except  where  an  execution  will  not  lie 
from  the  nature  of  the  thing  to  be  done.  In  England  the  statute  9  &  10  of 
William  III.  ch.  15,  expressly  authorizes  this  practice.  Our  act  does  not. 
In  our  courts  I  have  heard  of  no  instance  of  an  attempt  to  enforce  an  award 


40  AWARD.  [book  3. 

by  attacliment,  and  there  are  with  us,  from  the  peculiar  character  of  some 
df  our  laws,  strong  reasons  against  it,  independent  of  the  express  provision 
that  the  award  shall  be  entered  up  as  the  judgment  of  the  court,  and  en- 
forced as  other  judgments.  1  li.  C.  ch.  114.  The  English  cases  on  this 
subject,  therefore,  may  now  be  considered  as  irrelevant,  and  this  mode  of 
enforcing  an  award  as  unauthorized. 

For  what  objections  an  award  ma%j  he  set  aside.  Here  we  may  mention, 
First,  objections  to  the  arbitrators,  as  where  it  is  discovered  they  have  ail 
interest  in  the  award  ;— or  to  their  conduct,  (see  2  John.  C.  339.  6  Ran. 
529.  4  Leigh,  362,  436,)  as  where  they  have  been  partial,  or  have  had  pri- 
vate meetings  on  the  subject  of  the  arbitration  with  either  party  ;  or  have  ad- 
mitted improper  evidence,  or  excluded  what  is  proper;  or  have  refused  to 
hear  evidence  at  all,  or  excluded  the  parties  during  the  examination  of  the 
witnesses ;  or  have  taken  either  party  by  surprise  by  agreeing  to  postpone 
their  decision  on  account  of  the  sickness  or  absence  of  a  party  or  witness- 
es, and  then  making  up  their  award  unexpectedly,  and  within  the  time  a- 
greed  on  ;  or  receiving  other  evidence  after  giving  notice  that  they  would  re- 
ceive no  more  ;  6  Vcz.  70  ;  or  taking  compensation  from  one  party  for  their 
services,  when  the  other  refused  to  give  any  ;  or,  in  short,  any  collusion  or 
gross  misbehaviour  of  the  arbitrators  or  any  of  them.  Kyd,  346,  &.c.  Par- 
tiality and  improper  conduct  in'the  arbitrator  in  makii>g  his  award,  is  said 
to  be  only  matter  of  equitable  jurisdiction,  and  cannot  be  pleaded  to  an  ac- 
tion of  debt  on  the  bond.     8  E.  R.  344. 

Secondly.  Objections  to  the  award  itself,  (see  4  Ran.  95.)  We  have 
already  touched  on  this  part  of  the  subject,  observing  on  the  liberality  which 
has  of  late  years  prevailed  in  supporting  the  decisioi;s  of  these  tribunals  of 
the  parties'  own  choice.  The  leaning  in  favour  of  arbitrations  has  induced 
the  courts  in  some  cases  to  lay  it  down  as  a  rule,  that  collusion  or  gross 
misbehaviour  in  the  arbitrators,  furnishes  the  only  adequate  ground  for  set- 
ting aside  awards.  Yet  it  has  been  often  decided,  that  gross  error  in  fact 
or  in  law  plainly  appearing  upon  the  face  of  the  award,  will  be  deemed  suf- 
ficient to  vacate  the  decision  of  the  referees.  Kyd,  450.  See  2  Bos.  & 
Pull.  371.  The  following  principles  may  suffice  to  guide  the  student  on" 
this  subject. 

1.  Objections  to  the  award  itself  must  appear  on  its  face,  or  they  will  not 
be  available  to  the  party.  1  Wash.  11,  14.  2  Vez.jr.  24.  And  no  calcu- 
lations or  grounds  for  an  award  which  are  not  incorporated  in  it  or  annexed^ 
to  it  at  the  time  of  delivery,  can  be  received  as  reasons  or  grounds  to  avoid 
it:  1  H.  &  M.67.  2  Mun.  7,  8:  for  affidavits  can  in  no  case  be  admitted 
to  prove  that  the  arbitrators  erred.  1  AVash.  156,  159.  To  this  the  cases 
of  admission  of  improper  evidence,  or  rejection  of  what  is  proper,  may 
perhaps  be  considered  as  exceptions,  because  they  imply  improper  conduct 
in  the  arbitrators  ;  1  Wash.  193.  4  Mun.  281.  5  Mun.  10;  in  which  ca- 
ses extrinsic  evidence  was  admitted. 

2.  Awards  are  to  be  Aivorably  and  liberally  construed,  and  are  not  to  be 
set  aside  unless  they  appear  to  be  founded  on  grounds  clearly  illegal.  2 
Call,  433.  4  Mun.  114.  1  Vez.  jr.  369.  2  Vez.  jr.  15.  For  a  court  in 
examining  an  award,  pught  not  to  consider  itself  as  silting  in  an  appellate 
character,  and  reverse  the  award  of  arbitrators  merely  because  it  differs  from 
them  in  opinion  on  a  doubtful  (juestion.  It  ought  to  interfere  only  in  cases 
of  plain  mistake.  3  Call,  309,  319.  2  H.  &  M.  408.  13  East.  Rep.  357. 
2  John.  C.  361,  551.  And  where  a  naked  question  of  law  is  referred,  the 
award  thereupon  made  cannot  be  disturbed  for  mistake.  6  Vez.  282.  9 
Vez.  364.  4  Ran.  95.  And  by  a  reference,  the  court,  whether  of  law  or 
equity,  divests  itself  of  all  judgment  as  to  t\m  facts.  2  Vez.  21.  Where, 
however,  upon  a  general  reference,  the  arbitrator  m.eans  to  decide  according 


CHAP.  9.]  AWARD.  41 

to  law,  but  mistakes  it,  the  court  will  set  it  right;  and  this  has  been  decided 
both  at  law  and  in  equity.     9  Vez.  364.     3  East  Rep.  18. 

3.  The  award  of  the  umpire  is  not  vitiated  by  the  arbitrators'  joining  in 
it.  4Taun.232.  2  John.  C.  339.  4  Ran.  275.  Nor  even  by  a  stranger's 
signing  it.     Id. 

4.  An  award  will  not  be  set  aside  because  the  arbitrator  omitted  to  act  on 
part  of  the  matters  submitted,  unless  the  omission  appears  to  have  been  in- 
jurious to  the  party  complaining.     7  Cranch,  171. 

5.  Nor  will  an  award  be  considered  void  because  it  is  alternative  or  con- 
tingent, or  becar.se  one  of  the  alternatives  requires  the  party  to  do  an  act  in 
conjunction  with  a  stranger.     7  Cranch,  596.     1  Taun.  54i,\ 

Thirdly.  Conduct  of  the  parties.  If  facts  fire  concealed  from  the  arbi-*- 
trators  which  were  calculated  to  have  induced  a  different  award,  the  award 
may  be  set  aside  in  like  manner  and  upon  like  principles,  I  presume,  as  a 
judgment  at  law  obtained  by  surprise.  Kyd,  35G,  357.  ~  Vez.  132.  Sa 
ill  any  other  case  where  the  award  has  been  obtained  by  fraud  or  improper' 
conduct  of  either  party,  it  maybe  set  aside  in  equity  on  t'le  application  of  ths 
other.  Yet  a  court  of  equity  refused  to  interfere  on  the  declaration  of  one 
of  the  arbitrators,  that  his  opinion  v/ould  have  been  changed  had  he  seen  a 
letter  which  was  mislaid  at  the  time  of  the  av/ard,  but  was  afterwards  found. 
IS  Vez.  447. 

Of  the  means  of  procuring  relief  against  an  erroneous  av/ard.  Where  a 
submission  is  by  the  mere  act  of  the  parties,  as  in  the  case  of  an  agreement 
to  refer,  the  party  cannot  be  relieved  at  law  against  the  award  on  account 
of  any  extrinsic  circumstances,  whether  the  action  be  on  the  award  itself^- 
or  on  the  bond  or  agreement  of  submission.  He  may  plead,  indeed,  that 
the  award  does  not  agree  with  the  submission,  or  that  it  is  contrary  to  some 
of  those  rules  which  the  law  has  prescribed  for  the  constitution  of  an 
a\vard  ;  but  he  cannot  give  in  evidence  any  thing  to  impeach  the  conduct  of 
the  arbitrators  who  v>'ere  judges  of  his  own  choosing ;  8  East  Rep.  344  ', 
and  nothing  which  does  not  appear  upon  the  face  of  that  judgment,  can  be 
offered  in  evidence  to  overturn  it.  In  sach  cases  his  only  remedy  is  in  equi- 
ty, which  often  sets  aside  awards,  and  gives  the  relief  which  circumstances 
require.  Mistakes  are  there  corrected  and  per.^'ormance  decreed  according 
to  the  award  so  corrected.  1  Mad.  65.  4  John.  C.  405.  3  Ran.  7. 
Where  such  relief  is  sought  on  the  ground  of  partiality  or  corruption  in  the 
arbitrators,  they  may  be  made  defendants,  I  presume,  notwithstanding  the 
decision  in  Shermer  &  Beall.  1  Wash.  11.  2  Atk.  396,  412.  And  where 
they  have  combined  with  either  party,  or  been  partial  or  corrupt,  costs  will 
even  be  decreed  against  them.  2  Vez.  jr.  451.  But  an  arbitrator  who  has 
acted  fairly,  ought  not  to  be  made  party  and  exposed  to  the  costs  of  a  suit.- 
If  he  errs,  the  error  may  be  corrected  without  joining  him  in  the  litigation. 
1  Wash.  11. 

Vfhere  a  submission  is  by  rule  of  court,  whether  in  a  cause  depending  of 
not,  I  apprehend  it  is  within  the  power  of  the  court  to  set  aside  the  award, 
not  only  for  error  upon  the  face  of  it,  but  for  partiality,  corruption,  impro- 
per conduct  in  the  arbitrators,  &c.  2  Lord  Ray.  857.  And  generally, 
where  the  injured  party  has  failed  to  avail  himself  of  his  remedy  at  law,  he 
cannot  have  relief  in  equity.  2  H.  &,  M.  34.  Yet,  if  it  appears  that  the 
proceeding  under  the  authority  of  a  court  of  law,  v/culd  be  or  has  been  in- 
competent to  afford  complete  relief,  or  where  the  complaint  is  of  partiality 
or  corruption,  a  court  of  equity  will  give  its  aid,  though  a  previous  effort 
at  law  has  been  unsuccessful.     Kyd,  334.     See  18  Vez. jr.  419. 

The  act  of  assembly  (1  R.  C.  ch.  1!4,)  on  the  subject  of  submissions  io 
be  made  a  rule  of  court   where  no  cause   is  depending,  provides  that  no- 
award  shall  bo  set  aside  but  for  com^pticn,  partialitr/,  misbehaviour  of  \he 
Vol.  2— G 


42  REMITTER.  [  BOOK  3. 

arbitrators,  or  other  undue  7neans,  and  that  tliis  must  be  shewn  before  the 
end  of  the  second  term  next  after  its  return  to  court.  See  1  Call,  379. 
Yet  this  law  is  construed  to  permit  any  objections  which  would  lie  to  other 
awards  ;  14  Vez.  271.  3  East,  18;  and  though  they  cannot,  after  the  ex- 
piration of  the  appointed  time,  avail  the  party  on  a  rule  to  set  aside  the 
award,  yet  they  furnish  a  good  defence  to  an  attachment,  in  England,  for 
non-performance  of  the  award,  though  it  be  after  the  time  allowed.  Kyd, 
34^.  It  may  also  be  remarked,  that  though  amotion  to  set  aside  an  award 
for  corruption  and  other  causes  mentioned  Im  the  act,  must  be  made  within 
the  time  prescribed,  it  has  been  decided  to  be  otherwise  where  the  ground 
for  creating  it  is  a  plain  mistake,  and  the  award  was  made  under  a  reference 
in  a  cause  pending.     G  Taun.  111. 

Where  a  submission  is  by  consent  under  an  order  of  a  court  of  equity  in 
a  cause  depending  there,  though  the  arbitrators  must  make  a  report,  yet  the 
court  will  not  require  a  statement  of  particulars,  but  a  general  award  of  the 
balance  due  will  sufiice.  2  Vez.  jr.  23.  Nor  will  exceptions  lie  to  their 
award,  as  to  a  master's  rejwrt.     1  Br.  Ch.  R.  339.     3  Br.  1G3.    2  Vez.  jr.  22. 


CHAPTER  III. 

OF  REDRESS  BY  THE  MERE  OPERATION  OF  LAW. 

"  The  remedies  for  private  wrongs,  which  are  effected  by  the  mere  opera- 
tion of  the  law,  will  i'all  within  a  very  narrow  compass  :  there  being  only 
two  instances  of  this  sort  that  at  present  occur  to  my  recollection  ;  the  one 
that  of  retainer,  where  a  creditor  is  made  executor  or  administrator  to  his 
debtor ;  the  other,  in  the  case  of  what  the  law  calls  a  remitter. 

"  I.  If  a  person  indebted  to  another  makes  his  creditor  or  debtee  his  ex- 
ecutor, or  if  such  creditor  obtains  letters  of  administration  to  his  debtor  ;  in 
this  case  the  law  gives  him  a  remedy  for  his  debt,  by  allowing  him  to  retain 
so  much  as  will  pay  himself,  before  any  other  creditors  whose  debts  are  of 
equal  degree.  This  is  a  remedy  by  tlie  mere  act  of  law,  and  grounded  up" 
on  this  reason  ;  that  the  executor  cannot,  without  an  apparent  absurdity, 
commence  a  suit  against  himself  as  representative  of  the  deceased,  to  re- 
cover that  which  is  due  to  him  in  his  own  private  capacity  :  but  having  the 
whole  personal  estate  in  his  hands,  so  much  as  is  sufficient  to  answer  his 
own  demand  is,  by  operation  of  law,  applied  to  that  particular  purpose. 
Else,  by  being  made  executor,  he  would  be  put  in  a  worse  condition  than 
ill  the  rest  of  the  world  besides.  For,  th.ough  a  rateable  payment  of  all  the 
debts  of  the  deceased,  in  equal  degree,  is  clearly  the  most  equitable  me- 
thod, yet  as  every  scheme  for  a  proportionable  distribution  of  the  assets 
among  all  the  creditors  halh  been  hitherto  found  to  be  impracticable,  and 
])roductive  o^  more  mischiefs  than  it  would  remedy  ;  so  that  the  creditor 
v/ho  first  commences  his  suit  is  entitled  to  a  preference  in  payment;  it  fol- 
lows, that  as  the  executor  can  commence  no  suit,  he  must  be  paid  the  last 
of  any,  and  of  course  must  lose  his  debt,  in  case  the  estate  of  his  testator 
should  prove  insolvent,  unless  he  be  allowed  to  retain  it.  The  doctrine  of 
rttainer  is  therefore  the  necessary  consequence  of  that  oilier  doctrine  of  the 
law,  the  priority  of  such  creditor  who  first  commences  his  action.  But  the 
executor  shall  not  retain  his  own  debt,  in  prejudice  to  those  of  a  higher 
degree  ;  for  the  law  only  puts  him  in  the  same  situation,  as  if  he  had  sued 
himself  as  executor,  and  recovered  his  debt;  which  he  never  could  be  sup- 
posed to  have  done,  while  debts  of  a  higher  nature  subsisted.  Neither 
shall  one  exocutor  be  allowed  to  retain  his  own  debt,  in  prejudice  to  that 
of  his  co-executor  in  equal  degree  ;  but  both  .shall  be  discharged  in  propor- 


CHAP.  3.]  REMITTER.  43 

tion.  Nor  shall  an  executor  of  his  own  wrong  be  in  any  case  permitted  to 
retain. 

"  II.  Remitter  is  where  lie,  who  hath  the  true  property  or  jus  proprietatis 
in  lands,  but  is  out  of  possession  thereof,  and  hath  no  right  to  enter  with- 
out recovering  possession  in  an  action,  hath  afterwards  the  freehold  cast 
upon  him  by  some  subsequent,  and  of  course  defective,  title  ;  in  this  case 
he  is  remitted,  or  sent  back  by  operation  of  law,  to  his  ancient  and  more 
certain  title.  The  right  of  entry  vvliich  he  hath  gained  by  a  bad  title,  shall 
be  ipso  facto  annexed  to  his  own  inherent  good  one  ;  and  his  defeasible 
estate  shall  be  utterly  defeated  and  annulled,  by  the  instantaneous  act  of  law, 
without  his  participation  or  consent.  As  if  A  disseises  B,  that  is,  turns 
him  out  of  possession,  and  dies,  leaving  a  son  C  ;  hereby  the  estate  de- 
scends to  C  the  son  of  A,  and  B  is  barred  from  entering  thereon  till  he 
proves  his  right  in  an  action  :  now,  if  afterwards  C,  the  heir  of  the  dissei- 
sor, makes  a  lease  for  life  to  D,  with  remainder  to  B  the  disseisee  for  life, 
and  D  dies ;  hereby  the  remainder  accrues  to  B,  the  disseisee :  who  thus 
gaining  a  new  freehold  by  virtue  of  the  remainder,  which  is  a  bad  title,  is 
by  act  of  law  remitted,  or  in  of  his  former  and  surer  estate.  For  he  hath  here- 
by gained  a  new  right  of  possession,  to  which  the  law  immediately  annexes 
his  ancient  right  of  property. 

"If  the  subsequent  estate,  or  right  of  possession,  be  gained  by  a  man's 
own  act  or  consent,  as  by  immediate  purchase,  being  of  full  age,  he  shall 
not  be  remitted.  For  the  taking  such  subsequent  estate  was  his  own  folly, 
and  shall  be  looked  upon  as  a  waiver  of  his  prior  right.  Therefore  it  is  to 
be  observed,  that  to  every  remitter  there  are  regularly  ihese  incidents  ;  an 
ancient  right,  and  a  new  defeasible  estate  of  freehold,  uniting  in  one  and 
the  same  person;  which  defeasible  estate  must  be  cast  upon  the  tenant,  not 
gained  by  his  own  act  or  folly.  The  reason  given  by  Littleton,  why  this  re- 
medy, which  operates  silently,  and  by  the  mere  act  of  law,  was  allowed,  is 
somewhat  similar  to  that  given  in  the  preceding  article;  because  otherwise 
he  who  hath  right  would  be  deprived  of  all  remedy.  For  as  he  himself  is 
the  person  in  possession  of  the  freehold,  there  is  no  other  person  against 
whom  he  can  bring  an  action,  to  establish  his  prior  right.  And  for  this 
cause  the  law  doth  adjudge  him  in  by  remitter  ;  that  is,  in  sucji  plight  as  if 
he  had  lawfully  recovered  the  same  land  by  suit.  For,  as  Lord  Bacon  ob- 
serves, the  benignity  of  the  law  is  such,  as  when,  to  preserve  the  principles 
and  grounds  of  law,  it  depriveth  a  man  of  his  remedy  without  his  own  fault, 
it  will  rather  put  him  in  a  better  degree  and  condition  than  in  a  worse. 
Nam  quod  remedio  desliluitur,  ipsa  re  valet,  si  culpa  absit.  But  there  shall 
be  no  remitter  to  a  right,  for  which  the  parly  has  no  remedy  by  action  :  as 
if  the  issue  in  tail  be  barred  by  the  fine  or  warranty  of  his  ancestor,  and 
the  freehold  is  afterwards  cast  upon  him  ;  he  shall  not  be  remitted  to  his 
estate  tail :  for  the  operation  of  the  remitter  is  exactly  the  same,  after  the 
union  of  the  two  rights,  as  that  of  a  real  action  would  have  been  before  it. 
As  therefore  the  issue  in  tail  could  not  by  any  action  have  recovered  his 
ancient  estate,  he  shall  not  recover  it  by  remitter. 

"  And  thus  much  for  these  extrajudicial  remedies,  as  well  for  real  as  per- 
sonal injuries,  which  are  furnished  or  permitted  by  the  law,  where  the  par- 
ties are  so  peculiarly  circumstanced,  as  not  to  make  it  eligible,  or  in  some 
cases  even  possible,  to  apply  for  redress  in  the  usual  and  ordinary  methods 
to  the  courts  of  public  justice." 


44  COUHTS.  [  nooic  3. 

CHAPTER  IV. 

REDRESS  BY  SUIT.-OF  COUIiTS  IN  GENERAL. 

"The  next,  .and  principal  object  of  our  enquiries  is  the  redress  of  inju- 
ries by  suit  in  courts  :  wherein  tlic  act  of  the  parties  and  the  act  of  law  co- 
operate ;  the  act  of  the  parties  being  necessary  to  set  the  law  in  motion, 
and  the  process  of  the  law  being  in  general  the  only  instrument  by  which 
the  parties  are  enabled  to  procure  a  certain  and  adequate  redress. 

"  And  here  it  will  not  be  improper  to  observe,  that  although  in  the  se- 
veral cases  of  redress  by  the  act  of  the  parties  mentioned  in  a  lormer  chap- 
ter, the  law  allows  an  extrajudicial  remedy,  yet  that  does  not  exclude  the 
ordinary  course  of  justice  ;  but  it  is  only  an  additional  weapon  put  into  the 
hands  of  certain  persons  in  particular  instances,  where  natural  equity  or 
the  peculiar  circumstances  of  their  situation  required  a  more  expeditious 
remedy,  than  the  formal  process  of  any  court  of  judicature  can  furnish. 
Therefore,  though  I  may  defend  myself,  or  relations,  from  external  vio- 
lence, I  yet  am  afterv/ards  entitled  to  an  action  of  assault  and  battery  ; 
though  I  may  retake  my  goods,  if  I  have  a  fair  and  peaceable  opportunity, 
this  power  of  recaption  does  not  debar  me  from  my  action  of  trover  or  de- 
tinue ;  I  may  either  enter  on  the  lands,  on  which  I  have  a  right  of  entry, 
or  may  demand  possession  by  a  real  action  :  I  may  either  abate  a  nuisance 
by  my  own  autliority,  or  call  upon  the  law  to  do  it  forme  :  I  may  distrain 
for  rent  or  have  an  action  of  debt,  at  my  own  option  :  if  I  do  not  distrain 
iliy  neighbor's  cattle  damagc-feasant,  I  may  compel  him  by  action  of  tres- 
pass to  make  me  a  fair  satisfaction  ;  if  a  heriot,  or  a  deodand,  be  withheld 
from  me  by  fraud  or  force,  I  may  recover  it  though  I  never  seized  it.  And 
with  regard  to  accords  and  arbitrations,  these,  in  their  nature  being  merely 
an  agreement  or  compromise,  most  indisputably  suppose  a  previous  right  of 
obtaining  redress  some  other  way  ;  v.hich  is  given  up  by  such  agree- 
ment.* But  as  to  remedies  by  the  mere  operation  of  lav.',  those  are  indeed 
given,  because  no  remedy  can  be  ministered  by  suit  or  action,  vi'ithout 
running  into  the  palpable  absurdity  of  a  man's  bringing  an  action  against 
himself:  the  tv.'o  cases  wherein  they  happen  being  such,  wherein  the  only 
possible  legal  remedy  would  be  directed  against  the  very  person  himself 
who  seeks  relief. 

"  In  all  other  cases  it  is  a  general  and  indisputable  rule,  that  where 
there  is  a  legal  right,  there  is  also  a  legal  remedy,  by  suit  or  action  at  law, 
whenever  that  right  is  invaded.  And  in  treating  of  these  remedies  by 
suit  in  courts,  I  shall  pursue  the  ibllowing  method  :  first,  I  shall  con- 
sider the  nature  and  several  species  of  courts  of  justice  :  and,  secondly,  I 
shall  point  out  in  which  of  these  courts,  and  in  what  manner,  the  pro- 
per remedy  may  be  had  for  any  private  injury  ;  or,  in  other  words, 
what  injuries  are  cognizable,  and  how  redressed,  in  each  respective  species 
of  courts. 

"  First,  then,  of  courts  of  justice.  And  herein  we  will  consider,  first, 
their  nature  and  incidents  in  general ;  and  then,  the  several  species  of  them 
erected  and  acknowledged  by  the  laws. 

"A  court  is  defined  to  be  a  place  wherein  justice  is  judically  adminis- 
tered." In  Englr.nd,  (we  are  told  by  Sir,  Blackstone,)  all  courts  of  jus- 
tice derive  their  pov/ers  froin  the  crown  ;  but  in  this  commonwealth,  they 
can  h;ive  no  other  source  than  the  constitution  and  the  lavvs  made  in  pur- 
euancc  of  it.     A  variety  of  these  tribunals  are  erected  for  the  mere  speedy 

•  Anfl  n^i efirnciilB of  ilii.--  naluixi  caniiol  oiipI  ihc  court*  of  law  or  pqiiilv  of  ilieir  juri?<Ji(iion.  f»ee 
2  V'cz.  l-2;».  1  Wiln.  l-i:!  3  T.  K.  lo'J.  J5  Voz.  10.  .'inlit  is  a  rule  of  Ihw,  that  a  riglit  of  aclion 
once  vested  can  only  be  ilcsiroytil  liy  a  reliMPc  under  seal,  or  by  il;c  actual  receipt  of  icinciliing  in 
(a;isfuctiaii  of  the  w  lony  done,    tee  ','  D.  ii  (.'.  L'-'l.    1  Bingli.  lOJ.    1 D,  6:.  iC.  5^1*. 


CHAP.  4.]  ATTORNEYS  AT  LAW.  45 

and  impartifil  administration  of  justice,  some  with  more  limited  and  others 
with  more  extended  jurisdiction  :  some  constituted  for  enquiry  only,  others 
to  hear  and  determine  :  some  to  determine  in  the  first  instance,  others  upon 
appeal.  Of  these,  the  student  will  find  a  full  account  in  the  Revised 
Code  of  1819,  and  the  supplement  thereto. 

In  England,  there  is  a  distinction  between  courts  of  record  and  courts 
not  of  record.  In  Virginia,  there  is  no  court  not  of  record,  unless  we  con- 
sider in  that  light  our  justices  of  peace,  who  try  actions  for  small  debts,  but 
are  not  courts  of  record. 

"A  court  of  record  is  that,  where  the  acts  and  judicial  proceedings  are 
enrolled  [or  entered  in  a  book]  for  a  perpetual  memorial  and  testimony  : 
which  rolls  [or  books]  are  called  the  records  of  the  court,  and  are  of  such 
high  and  super-eminent  authority,  that  their  truth  is  not  to  be  called  in 
question.  For  it  is  a  settled  rule  and  maxim  that  nothing  shall  be  averred 
against  a  record,  nor  shall  any  plea,  or  even  proof,  be  admitted  to  the  con- 
trary. And  if  the  existence  of  a  record  be  denied,  it  shall  be  tried  by  noth- 
ing but  itself:  that  is,  upon  bare  inspection  whether  there  be  any  such  re- 
cord or  no ;  else  there  would  be  no  end  of  disputes.  But,  if  there  appear 
any  mistake  of  the  clerk  in  making  up  such  record,  the  court  will  direct 
him  to  amend  it  ;"  for  those  errors  which  are  merely  clerical  may  at  any 
time  be  amended  upon  motion,  or  by  writ  of  error  coram  nobis.  [As  to 
what  is  a  clerical  error,  see  1  Ran.  25.]  But  if  there  be  error  in  the  judg- 
ment of  a  court  of  law,  the  amendment  can  only  be  made  while  the  proceed- 
ings are  in  fieri ;  that  is,  before  a  final  judgment,  or  during  the  term  when 
such  judgment  is  rendered;  for  no  court  of  law  can  reverse,  alter,  or  amend, 
any  final  judgment  given  at  a  former  term,  which  had  been  entered  on  the 
order  book,  and  signed  by  a  judge  in  open  court.  1  H.  &  M.  25.  (Yet 
see  4  Mauie  &,  Sehv.  94,  101.)  ''And  the  same  doctrine  is  admitted  as  a 
general  rule  also  as  to  courts  of  equity,  though  mistakes  in  entering  decree3 
are  there  set  aside  upon  motion  ;  and  in  like  manner  a  decree  by  default 
has  been  set  aside  upon  good  cause  shewn,  at  a  succeeding  term.  See  1 
H.  &  M.  204.     6  Mun  207. 

By  the  act  (1  R.  C.  ch.  128,  §  108,  109,)  moreover,  mistakes  of  sums  or 
names  in  any  judgment  at  law  or  decree  in  equity  maybe  rectified,  if  there 
be  in  the  proceedings  any  verdict,  bond,  bill,  note,  or  other  writing,  whereby 
the  correction  can  be  made.  So  where  a  verdict  is  rendered  for  more  dam- 
ages than  the  plaintiff  claims  by  his  suit,  or  a  judgment  is  rendered  for  the 
full  amount  of  a  fortlicoming  or  replevy  bond  conditioned  for  more  than  is 
due.  As  to  the  mode  of  proceeding  in  such  cases  (which  should  be  strictly 
pursued)  the  student  must  consult  the  statute  itself.  In  Bent  vs.  Fatten,  I 
Ran.  25,  the  court  was  of  opinion  that  this  act  did  not  enlarge  the  subjects 
amendable,  and  of  course  embraced  only  clerical  errors. 

In  every  court  there  must  be  at  least  three  constituent  parts,  the  actor, 
reus,  and  judex;  the  actor  or  plaintiff",  who  complains  of  an  iiijury  done; 
"the  reus,  or  defendant,  who  is  called  upon  to  make  satisfaction  for  it; 
and  the  judex,  or  judicial  power,  which  is  to  examine  the  truth  of  the  fact, 
to  determine  the  law  arising  upon  that  fact,  and,  if  any  injury  appears  to 
have  been  done,  to, ascertain,  and  by  its  officers  to  apply  the  remedy.  It  is 
also  usual  in  the  courts  to  have  attorneys,  and  advocates  or  counsel,  as  as- 
sistants. 

"  An  attorney  at  law  answers  to  the  procurator,  or  proctor,  of  the  civilians 
and  canonists.  And  he  is  one  vvho'is  put  in  the  place,  stead,,  or /wrn  of 
another,  to  manage  his  matters  of  law.  Formerly  every  suitor  was  obliged 
to  appear  in  person,  to  prosecute  or  defend  his  suit,  (according  to  the  old 
Gothic  constitution,)  unless  by  special  license  under  the  king's  letters  pa- 
tent.    And  an  idiot  canpot  to  this  day  appear  by  attorney,  but  in  person, 


46  ATTORNEYS  AT  LAW.  [  book  3. 

for  he  hath  not  discretion  to  enable  him  to  appoint  a  proper  substitute  :  and 
upon  his  bein^  brought  before  tlie  court  in  so  defenceless  a  condition,  the 
judges  are  bound  to  take  care  of  his  interests,  and  they  shall  admit  the  best 
plea  in  his  behalf  that  any  one  present  can  suggest." 

Leaving  to  the  student  to  pursue  in  Mr.  Blackstone's  work,  his  account 
of  attorneys  in  England,  I  shall  proceed  to  some  remarks  on  the  subject 
under  our  own  laws. 

In  Virginia  the  functions  of  attorney,  solicitor,  proctor,  counsel,  and  ad- 
vocate, are  united  in  the  same  person,  who  is  called  a  lawyer.  See  1  Mun. 
468,  478. 

All  persons  have  the  privilege  of  prosecuting  their  suits,  or  being  defend- 
ed by  counsel,  nor  does  our  law  deny  it  to  a  prisoner  prosecuted  by  the 
commonwealth,  whatever  may  be  the  charge  exhibited  against  him.  In 
England  the  attorney  usually  receives  a  warrant  from  the  party  retaining 
him.  In  Virginia  a  parol  retainer  is  not  only  sufficient,  but  the  warrant  is 
unknown  in  practice,  however,  here,  as  well  as  in  England,  though  an  at- 
torney takes  upon  him  to  appear  without  being  retained,  the  court  looks 
•no  farther,  but  proceeds  as  if  the  attorney  had  sufficient  authority,  and 
leaves  the  party  to  his  action  against  him;  1  Salk.  86;  unless,  indeed, 
where  he  appears  to  be  an  irresponsible  person.  1  Salk.  88.  So,  too,  in 
«quity.  See  I  Vez.  jr.  200.  1  Mad.  140,  413.  It  is  true  that  the  attor- 
ney by  such  conduct  renders  himself  not  only  liable  to  reprehension  for  un- 
gentlemanly  behaviour,  but  he  may  be  proceeded  against  for  mal-practice. 
Bac.  "Attorney,"  H.  An  attorney,  ho.vever,  may  by  endorsement  on  the 
writ,  engage  to  appear  for  a  person  sued,  and  this,  where  bail  is  not  re- 
quired, is  a  sufficient  appearance  by  our  law,  and  must  be  entered  as  such. 
1  R.  C.  ch.  128,  §  42.  Where  an  attorney  undertakes  to  appear,  he  is 
bound  to  do  so,  and  as  at  law  he  cannot  be  discharged  against  his  will,  with- 
out an  order  of  court,  (Bac.  Attorney,  E,)  so  neither  can  he  recede  without 
his  client's  consent.  1  Salk.  87.  6  Mod.  86.  Str.  693.  12  Mod.  251. 
And  if  he  fail  to  appear  according  to  his  undertaking,  he  is  moreover  liable 
to  forfeit  $8  to  the  defandant.  1  R.  C.  ch.  76,  §  10.  Still  less  can  the  at- 
torney justify  receding  with  a  view  to  becoming  counsel  on  the  other  side. 
For,  as  no  man  can  be  attorney  on  both  sides,  except  perhaps  in  a  friendly 
suit  where  there  is  no  real  litigation,  and  as  counsel  are  not  permitted  to 
reveal  the  confidential  communications  of  their  clients,  it  follows,  a/or<iori, 
that  no  man  who  has  been  of  counsel  for  one  of  the  parties,  can  afterwards 
become  the  advocate  of  the  other.  See  Coop.  Ch.  Ca.  80,  89.  Per  Lord 
Eldon. 

The  authority  or  power  of  an  attorney  over  his  client's  cause,  continues 
regularly  until  the  judgment,  and  for  a  year  and  a  day  afterwards.  If,  in- 
■deed,  the  judgment  not  being  satisfied,  is  continued  in  force  by  the  issue  of 
execution,  his  authority  is  prolonged  accordingly.  His  powers  are  not  in- 
considerable. He  is  the  proper  person  ^;e?/(/t«/e /(7c  to  receive  paynient,  and 
a  tender  to  him  is  properly  made,  10  C.  L.  R.  272,  and  though  he  cannot 
enter  a  retraxit,  (8  Co.  58,)  or  execute  a  release  for  his  client,  either  of  the 
debt  or  of  errors  in  the  proceedings,  (see  2  H.  Si  M.  268,  288,)  yet  he  may 
submit  the  suit  to  arbitration,  (Cartli.  412.  7  Crauch,  449,)  or  enter  a  re- 
millit  dnmna,  (2  Lord  Ray.  II  12,)  either  where  it  is  necessary,  because  of 
the  damages  assessed  exceeding  those  laid  in  the  writ,  or  where,  on  a  mo- 
tion by  the  o|)posite  party  for  a  new  trial,  the  court  is  not  disposed  to  grant 
it,  unless  there  is  a  release  of  part.  It  is  advisable,  however,  in  all  such 
cases,  that  he  should  consult  his  client,  and  obtain  his  assent. 

In  England,  payment  of  money  to  the  plaintiff's  attorney  by  the  defend- 
ant, is  a  good  payment  if  made  within  a  year  and  a  day  after  judgment ;  but 
in  Virginia,  by  the  custom  of  the  country,  a  payment  to  the  attorney  on  re- 


CHAP.  4.]  ATTORNEYS  AT  LAW.  47 

cord,  of  the  money  recovered,  is  good,  though  the  year  and  day  have  elapsed. 
1  Call,  147.  This  principle,  however,  resting  upon  the  ground  of  an  impli- 
ed authority  in  the  attorney,  does  not  apply  where  the  defendant  is  forwarn- 
ed  against  making  such  payment,  for  thereby  the  implication  is  rebutted.  1 
Wash.  10. 

It  must  be  observed,  however,  that  as  the  attorney  represents  his  client 
only  in  court,  he  has  no  right  to  enter  into  private,  executory,  or  collateral 
contracts  or  engagements  for  him.  2  Call,  503.  Nor  in  strictness  can  he 
make  a  compromise  for  his  client,  though,  as  we  have  seen,  he  may  refer  his 
cause  to  arbitration.  7  Cranch,  449,  452.  Nor  can  he  without  authority 
receive  the  bond  of  a  third  person  from  his  client's  debtor  in  discharge  of  his 
demand.  If  he  does  he  is  considered  quoad  such  bond,  the  defendant' s 
agent.     5  Ran.  6-39. 

For  neglect  of  duly,  an  attorney  is  unquestionably  liable  ;  1  R.  C.  ch.  76, 
§  8;  and  bound  to  make  retribution  to  his  client  for  the  injury  which  he  may 
have  sustained  by  reason  of  it.  2  Wash.  211.  But  it  is  said  that  to  make 
attorneys  liable  upon  a  charge  of  this  sort,  gross  negligence  should  appear; 
ibid,  212;  and  that  they  ought  to  be  protected  when  they  act  to  the  best  of 
their  skill  and  knowledge,  and  without  culpable  negligence.  Burrow,  2061. 
But  the  omission  to  file  a  declaration  would  be  culpable  negligence,  and  if 
the  judgment  was  for  that  cause  arrested,  the  attorney  would  doubtless  be- 
responsible  for  all  damages  and  costs  occasioned  thereby.  The  remedy  in 
these  cases  is  generally  by  action,  (2  Bl.  R.  780.  Burr.  2060,)  but  where 
the  negligence  is  gross,  courts  have  sometimes,  upon  motion,  compelled 
attorneys  to  indemnify  their  clients.  1  P.  Wms.  593.  There  is  one  spe- 
cies of  breach  of  duty  which  is  so  disgraceful  and  flagrant  that  our  law  has 
provided  a  summary  remedy  for  its  redress.  I  mean  the  refusing  to  pay  to 
a  client  money  which  has  been  collected  by  the  attorney  for  him.  The  cli- 
ent in  such  case  may,  upon  motion,  before  any  court,  on  ten  days'  notice^ 
recover  the  sum  due,  with  damages  in  lieu  of  interest  not  exceeding  15 
per  cent,  per  annum  from  the  time  of  the  receipt  of  the  money  until  pay- 
ment.    1  R.  C.  ch.  75,  §  9.* 

For  mi&behaviour  in  his  office,  attorneys  are  by  common  law  liable  to  be 
punished  in  a  summary  way,  either  by  attachment  or  by  having  their  names 
struck  from  the  court  roll.  Both  of  these  remedies,  however,  have  been 
generally  sparingly  used,  and  it  may  now  be  doubted  how  far  it  is  in  the 
power  of  the  court  to  make  use  of  the  latter.  For  it  seems  superseded  by 
oar  statute,  which  provides  that  the  judges  of  the  general  court,  either  in 
the  general  or  circuit  courts,  may,  upon  their  own  detection  of  malpractice 
of  any  attorney,  or  upon  complaint  made  to  them  in  writing  of  such  mal- 
practice in  said  courts,  or  any  county  or  corporation  court,  summon  him  to 
shew  cause  why  an  information  should  not  be  tiled  against  him.  This  in- 
formation, if  directed,  is  to  be  tried  by  a  jury,  and  if  the  attorney  be  convict- 
ed he  may  be  suspended,  or  his  license  may  be  vacated.  The  court  of  ap- 
peals, and  courts  of  chancery,  have  similar  powers  over  the  counsel  at  their 
bars,  but  the  county  and  corporation  courts  have  no  such  power,  though 
they  may  fine  attorneys  for  misdemeanors  and  contempts,  and  compel  them 
to  give  security  for  their  good  behaviour.     1  R.  C.  ch.  76,  §  6. 

It  would  be  difficult  to  enumerate  the  various  acts  which  amount  to  mal- 
practice in  an  attorney.!  Appearing  without  a  retainer,  protracting  suits  by 
disingenuous  artifices,  dealing  unfairly  with  their  clients  in  the  way  of  bu- 
siness, colluding  with  them  in  deceiving  the  court,  putting  them  to  unne- 

*  It  is  lite  duty  of  an  attorney  receiving  money  to  keep  it  safely  and  ready  to  he  paid  on  demand  : 
nor  is  lie  chargeable  with  interest  unless  he  neglects  for  a  lang  time  to  inform  his  client  that  it  is  rea- 
dy, or  is  otherwise  in  default,  6  John.  358,  or  makes  profit  of  it  by  dealing  with  it.     Id. 
t  An  attorney  is  chargeable  with  a  debt  lost  by  negligence  but  not  with  interest  upon  it-    ~  Leigh,  KO. 


4&  ATTORNEYS  AT  LAW.  [book  3. 

cessary  expense  for  the  purpose  of  raising  their  fees,  demanding  fees  for 
business  that  was  never  done,  refusing  to  pay  money  collected,  or  to  deliver 
np  writings  entrusted  to  them  in  the  way  of  business,  without  cause  for  de- 
taining them,  are  all  set  down  as  instances  of  malpractice.  So,  too,  are 
maintenance  and  champerty,  and  every  species  of  barratry  and  stirring  up 
suits.*  Much  more  is  an  attorney  liable  to  have  his  license  vacated  where 
he  is  convicted  of  a  felony  ;  Cow.  8-29.  1  R.  C.  ch.  76,  §  5;  for  such  an 
one  must  be  unfit  for  a  profession  which,  however  frequently  degraded, 
ought  to  be  among  the  most  honorable,  as  it  certainly  is  among  the  most  im- 
portant in  society.  Courts  have,  therefore,  been  ahvays  ready  to  correct 
abuses  by  these  ofiicers  of  the  law,  and  anxious  to  render  them  fit  minis- 
ters in  the  temple  of  justice,  instead  of  being  the  "  fomenters  and  conduc- 
tors of  the  petty  war  of  village  vexation." 

The  prevalence  of  the  same  spirit,  together  with  a  jealousy  of  all  trans- 
actions where  one  of  the  parties  may  be  presumed  to  have  an  influence 
over  another,  has  induced  courts  of  equity  to  be  very  scrutinizing  in  the 
examination  of  contracts  between  attorneys  and  their  clients.  Transactions 
which  between  others  vvould  not  be  disturbed,  may  be  overturned  when  they 
have  taken  place  between  parties  standing  at  the  time  in  that  relation  to 
each  other  ;  though  when  it  has  completely  ceased,  no  objection  will  then 
exist  to  the  manifestation  of  liberality  to  his  attorney  by  a  client.  2  Vez. 
jr.  201.  4  Br.  P.  C.  2o,  245.  IS  Vez.  127.  2  Vez.  259.  13  Vez.  42.  2 
Atk.  29S. 

Among  the  other  duties  of  an  attorney,  is  that  of  fidelity  in  keeping  the 
secrets  entrusted  to  him.  This,  as  has  been  elsewhere  intimated,  is  the 
privilege  of  the  client,  and  not  of  tlie  counsel.  It  is  a  principle  adopted 
with  a  view  to  leave  the  party  in  a  cause  perfectly  fearless  in  those  commu- 
nications to  counsel  which  may  be  essential  to  justice  and  to  his  defence. 
Hence  an  attorney  can  neither  be  forced, 'nor  will  he  be  permitted  to  reveal 
the  secrets  of  his  client  confided  to  him  in  his  professional  character  ;  nor 
to  produce  his  papers  ;  (6  Vez.  280.  18  Vez.  484.  15  Vez.  408.  1  Meri- 
vale,  113.  3  Ibid,  292,)  and  this  obligation  of  secrecy  continues  always 
and  extends  to  consultations  with  counsel,  and  to  communications  to  a  scri- 
vener about  to  prepare  a  deed  for  the  party,  as  well  as  to  matters  respecting 
suits  in  court.  4  IMun.  273,  285.  2  Mun.  122.  And  although  the  coun- 
sel declines  the  duty  on  account  of  the  fraudulent  designs  of  the  client,  he 
is  not  at  liberty  to  betray  him.  2  Erod.  £c  Bin.  4.  This  rule  is  extended 
to  interpreters  between  the  counsel  and  client,  but  no  farther.  4  Mun. 
287.  It  has  been  attempted,  indeed,  in  other  states,  to  extend  it  to  the 
case  of  a  student  in  a  lawyer's  office,  but  the  attempt  has  failed.  A  like 
effort  was  made  in  New  York  to  excuse  a  priest  from  giving  evidence  of  the 
confession  of  a  party.  In  one  of  the  inferior  tribunals  of  that  state  the  ef- 
fort succeeded,  but  I  have  not  learnt  that  the  principle  has  received  any  coun- 
tenance from  the  superior  courts.! 

The  ris^hts  of  counsel.  In  Virginia  every  lawyer  hath  a  right  to  demand 
the  fee  allowed  by  law  for  the  service  performed.  For  these  see  1  R.  C. 
ch.  76,  §  14.  The  penalty  of  $150  is  denounced  against  those  who  at  any 
time  Ijefore  the  termination  of  the  suit  take  more  than  the  legal  compensa- 
tion or  fee,  and  all  contracts  therefor  are  declared  void.  §  14.  Another 
penalty  of  $60  is  denounced  against  any  counsel  prosecuting^  an  appeal  where 
he  was  attorney  for  the  plaintifi"  in  the  court  below.  §7.  A  penalty  of 
$1500  is  also  denounced  against  any  attorney  who  appears  under  a  power 
of  attorney  to  confess  judgment,  made  before  action  brought. 

_*I_f  an  attorney  purcliiiscs  the  sulycct  of  controversy  for  liis  own  benefit  it  is  champerty.    5  John. 
t  What comraunicalions are  not  pi ivilegeil.    Sec  '2  Barn.  &.  Cics.  745.     9  C.  L.  R.  233. 


CHAP. 


4.]  ATTORNEYS  AT  LAW.  49 


On  the  other  hand,  attorneys  have  many  rights  secured  to  them  by  law. 
They  have  a  right  to  a  free  examination  of  all  the  papers  of  the  clerk's  of- 
fice, without  fee  or  reward  to  the  clerk.  Though  their  fees  are  not  collecta- 
ble by  the  sheriffs,  they  may  retain  them  out  of  moneys  which  they  receive 
for  their  client.  Doug.  233.  3  Atk.72().  They  may  withhold  their  papers 
until  they  are  paid  what  is  due.  4  T.  R.  123.  They  have  a  lien  also  upon 
the  funds  or  amount  of  recovery  iii  transilu  :  for  if  an  attorney  applies  to 
the  court,  it  will  prevent  the  payment  over,  till  his  demand  is  satisfied,  and  a 
payment  by  the  sheriff  or  the  party  at\er  notice,  would  be  in  his  own  wrong, 
if  notice  not  to  pay  be  previously  given  by  the  attorney.  Ibid.  1  H.  B.  122. 
6  T.  R.  351.  The  same  doctrines  prevail  in  equity  ;  and  the  lien  of  the 
attorney  has  preference  to  the  claim  of  specialty  creditors;  3  Atk.  720; 
for  they  have  only  a  right  to  nett  proceeds  after  deducting  expenses.  Nor 
will  the  courts  permit  the  attorney  to  be  defrauded  of  his  lien  by  collusion 
between  the  parties,  as  by  a  release  by  his  client  to  his  adversary  of  the  a- 
mount  of  his  judgment.     2  Vez.  25. 

There  is  one  point  on  which  there  is  some  conflict  between  the  courts. 
It  respects  the  equitable  right  of  set  off.  Where  A  and  B  have  mutual 
judgments,  either  may  move  to  set  off  the  judgments  against  each  other. 
The  question  then  arises  whether  the  attorney's  lien  sliall  have  preference 
to  the  set  off.  Thus,  if  each  has  judgment  against  the  other  for  £100,  their 
demands  would  be  exactly  balanced.  But  the  counsel  of  A  (who  is  insol- 
vent) has  a  lien  for  £10.  If  he  gets  this  allowed,  then  B  v^ill  have  the  ben- 
efit of  a  set  off  of  only  £90,  or  in  other  words  will  have  to  pay  the  £10  to 
the  attorney.  In  the  king's  bench  and  exchequer  in  England,  the  attorney's 
lien  seems  to  have  preference.  6  T.  R.  456.  4  T.  R.  123.  In  the  com- 
mon pleas  (2  H.  B.  441.  2Bos.&Pui.  28.  4  Bos.  &  Pul.  22,)  and  in  the 
court  of  chancery  it  seems  otherwise,  the  latter  court  never  interposing  the 
lien  farther  than  upon  the  clear  balance,  which  is  the  result  of  the  equity 
between  the  parties.  2  Mad.  435.  See  8  John.  355.  6  John.  C.  317.  15 
Vez.  79,  541.  Yet  observe  that  where  there  are  costs  in  equity  and  at  law, 
due  from  opposite  parties  to  each  other,  the  court  of  equity  will  not  set  them 
off  to  the  exclusion  of  the  attorney's  lien.     1  Anst.  61. 

A  solicitor  in  chancery  ought  to  carry  on  the  business  to  a  hearing,  and  if 
he  does  not,  he  loses  both  lien  and  right  of  action.  14  Vez.  272.  8  \  ez. 
2.  On  the  other  hand  he  maybe  discharged,  but  may  retain  the  papers  in 
his  possession  till  he  is  paid  ;  though  the  party  may  proceed  without  them  if 
he  can.     13  Vez.  161,  195.     1  Sch.  &  Lef.  315,  316.* 

If  an  attorney  dies  before  the  business  is  completed,  yet  I  conceive  he  is 
not  bound  to  refund.  The  engagement  as  an  attorney  is  the  consideration 
of  the  fee  :  the  attorney  is  excused  for  not  performing  the  contract  because 
he  has  been  prevented  by  the  act  of  God  ;  and  there  can  be  no  apportion- 
ment in  such  a  case.     See  what  is  said  in  Evans'  Pothier,  2  vol.  43. 

*  In  England  it  is  snifl  a  physician  cannot  maintain  an  action  for  liis  fees.  4  Term  Rep.  317.  [With 
us  the  usage  and  understanding  of  tlie  country  woulii  lead,  I  presume,  to  a  difliMeiit  decision.  Edi- 
tor.'] It  lias  also  been  held,  that  no  action  lies  to  recover  back  a  fee  tiven  to  a  barrister  to  argue  a 
cause  which  he  did  not  attend.  Peake's  R.  l'-2i2.  Formerly  it  was  considered,  that  if  a  counsel  dis- 
closed his  client's  case  or  neglected  to  attend  to  it,  he  was  liable  to  be  sued.  See  Vin.  Ab.  Actions  of 
Assumpsit,  P.  But  in  more  modern  times,  it  has  been  considered  that  no  such  action  is  sustaina- 
ble.   Pealte's  R.  96.     CUitCy. 


VOL.  2—7 


50  REMEDIES  BY  ACTION.  [book  3. 

CHAPTER  V. 

OF  WRONGS  A.\D  THEIR^IIEMEDIES  RESPECTING  THE  RIGHTS  OF  PERSONS. 

We  come  now  to  consider  the  "  remedies  in  the  public  and  general 
courts  of  common  law,*  for  injuries  or  private  wrongs  of  any  denomination 
whatsoever.  And  herein  I  shall,  first,  define  the  several  injuries  cogniza- 
ble by  the  courts  of  common  law,  with  the  respective  remedies  applicable  to 
each  ])articular  injury  :  and  shall,  secondly,  describe  the  method  of  pursuing 
and  obtaining  these  remedies  in  the  several  courts. 

"  First,  then,  as  to  the  several  injuries  cognizable  by  the  courts  of  com- 
mon law,  with  the  respective  remedies  applicable  to  each  particular  injury. 
And,  in  treating  of  these,  I  shall  at  present  confine  myself  to  such  wrongs 
as  may  be  committed  in  the  mutual  intercourse  between  subject  and  subject ; 
which  the  king,  as  the  fountain  of  justice,  is  officially  bound  to  redress  in 
the  ordinary  forms  of  law  ;  reserving  such  injuries  or  encroachments  as  may 
occur  between  the  crown  and  the  subject,  to  be  distinctly  considered  here- 
after, as  the  remedy  in  such  cases  is  generally  of  a  peculiar  and  eccentrical 
nature. 

'•■  Now,  since  all  wrong  may  be  considered  as  merely  a  privation  of  right, 
the  plain  natural  remedy  for  every  species  of  wrong  is  the  being  put  into 
possession  of  that  right,  whereof  the  party  injured  is  deprived.  This  may 
either  be  efTected  by  a  specific  delivery  or  restoration  of  the  subject-matter 
in  dispute  to  the  legal  owner;  as  when  lands  or  personal  chattels  are  un- 
justly withheld  or  invaded  :  or  where  that  is  not  a  possible,  or  at  least  not  an 
adequate  remedy,  by  making  the  sufferer  a  pecuniary  satisfaction  in  dama- 
ges ;  as  in  case  of  assault,  breach  of  contract,  &,c.:  to  which  damages  the 
partv  injured  has  acquired  an  incomplete  or  inchoate  right,  the  instant  he 
receives  the  injury ;  though  such  right  be  not  fully  ascertained  till  they  are 
assessed  by  the  intervention  of  the  law.  The  instruments  whereby  this 
remedy  is  obtained  (which  are  sometimes  considered  in  the  light  of  the  rem- 
edy itscjf)  are  a  diversity  of  suits  and  actions,  which  are  defined  by  the 
mirror  to  be  'the  lawfiil  demand  of  one's  right  :'  or,  as  Bracton  and  Fleta 
express  it,  in  the  words  of  Justinian,  jus  proseqiicndi  injudicio  quod  alicui 
debctwr. 

"  Actions  are  by  us  distinguished  into  three  kinds  ;  a.cUons personal,  real, 
and  mixed. 

"  Personal  actions  are  such  whereby  a  man  claims  a  debt,  or  personal 
duty,  or  damages  in  lieu  thereof:  and,  likewise,  whereby  a  man  claims  a 
satisfaction  in  damages  for  some  injury  done  to  his  person  or  property.  The 
former  are  said  to  be  founded  on  contracts,  the  latter  upon  torts  or  wrongs: 
and  they  are  the  same  which  the  civil  law  calls  '  actiones  in  personam,  quae 
adversus  cam  intenduntnr,  qui  ex  contractu  vel  delicto  obligatus  est  aliquid 
dare  vtl  concedere.'  Of  the  former  nature  are  ail  actions  upon  debt  or  pro- 
mises ;  of  the  latter  all  actions  for  trespasses,  nuisances,  assaults,  defamato- 
ry words,  and  the  like. 

"  Real  actions,  (or  as  they  are  called  in  the  mirror, /eorfaZ  actions,)  which 
concern  real  ])roperty  only,  are  such  whereby  the  plaintiff,  here  called  the 
demandant,  claims  title  to  have  any  lands  or  tenements,  rents,  commons,  or 
other  Iicreditnnionts,  in  fee-simple,  foe-tail,  or  for  term  of  life.  By  these 
actions  formerly  all  disputes  concerning  real  estates  were  decided;  but  they 
are  now  ])rctty  generally  laid  aside  in  ])ractice,  upon  account  of  the  great 
nicety  required  in  their  management,  and  the  inconvenient  lenglh  of  (heir 
process:  a  much  more  expeditious  method  of  trying  titles  being  since  in- 
troduced, by  other  actions  personal  and  mixed. 

'The  rcnicdieB.Tffoi-ded  liy  courts  of  equity  will  he  the  suhject  of  enquiry  hercaflcr.    Tiie  subjects 
of  admiralty  and  m;uiiime  jurii-diclion  arc  invested  in  the  United  Stales'  Courts  by  the  C.  U.  S. 


CHAP.  5.]  REMEDIES  BY  ACTION.  51 

"  Mixed  actions  are  suits  partaking  of  the  nature  of  the  other  two,  where- 
in some  real  property  is  demanded,  and  also  personal  damages  for  a  wrong 
sustained.  As  for  instance  an  action  of  waste  :  which  is  brought  by  him 
who  hath  the  inheritance,  in  remainder  or  reversion,  against  the  tenant  for 
life,  who  hath  committed  waste  therein,  to  recover  not  only  the  land  wasted, 
which  would  make  it  merely  area/  action  ;  but  also  treble  damages,  in  pur- 
suance of  the  statute  of  Gloucester,  which  is  a  personal  recompense  ;  and 
so  both,  being  joined  together,  denominate  it  a  mixed  action. 

'•■  Under  these  three  heads  may  every  species  of  remedy  by  suit  or  action 
in  the  courts  of  common  law  be  comprised.  But  in  order  effectually  to  ap- 
ply the  remedy,  it  is  first  necessary  to  ascertain  the  complaint.  I  proceed 
therefore  now  to  enumerate  the  several  kinds,  and  to  enquire  into  the  res- 
pective natures  of  all  private  wrongs,  or  civil  injuries,  which  may  be  offered 
to  the  rights  of  either  a  man's  person  or  his  property  ;  recounting  at  the 
same  time  the  respective  remedies,  which  are  furnished  by  the  law  for  every 
infraction  of  right.  But  I  must  first  beg  leave  to  premise,  that  all  civil  in- 
juries are  of  two  kinds,  the  one  without  force  or  violence,  as  slander  or 
breach  of  contract ;  the  other  coupled  with  force  or  violence,  as  batteries 
or  false  imprisonment.  Which  latter  species  savour  something  of  the  crim- 
nal  kind,  being  always  attended  with  some  violation  of  the  peace  ;  for 
which  in  strictness  of  law  a  fine  ought  to  be  paid  to  the  king,  as  well  as  a 
private  satisfaction  to  the  party  injured.  And  this  distinction  of  private 
wrongs,  into  injuries  iwi^A  and  without  force,  Ave  shall  find  to  run  through  all 
the  variety  of  which  we  are  now  to  treat.  In  considering  of  which,  I  shall 
follow  the  same  method  that  was  pursued  with  regard  to  the  distribution  of 
rights:  for  as  these  are  nothing  else  but  an  infringement  or  breach  of  those 
rights,  which  we  have  before  laid  down  and  explained,  it  will  follow  that  this 
negative  system,  ofivrongs,  must  correspond  and  tally  with  the  former  po- 
sitive system,  of  rights.  As  therefore  we  divided  all  rights  into  those  of 
persons,  and  those  of  things,  so  we  must  make  the  same  general  distribu- 
tion of  injuries  into  such  as  affect  the  rights  of  persons,  and  such  as  affect 
the  rights  of  property. 

"The  rights  of  persons,  we  may  remember,  were  distributed  into  absolute 
and  relative  :  absolute,  which  were  such  as  appertained  and  belonged  to 
private  men,  considered  merely  as  individuals,  or  single  persons  ;  and  rela- 
tive, which  were  incident  to  them  as  members  of  society,  and  connected  to 
each  other  by  various  ties  and  relations.  And  the  absolute  rights  of  each 
individual  were  defined  to  be  the  right  of  personal  security,  the  right  of 
personal  liberty,  and  the  right  of  private  property,  so  that  the  wrongs  or  in- 
juries affecting  them  must  consequently  be  of  a  correspondent  nature. 

I.  "  As  to  injuries  which  affect  the  personal  security  of  individuals,  they 
are  either  injuries  against  their  lives,  their  limbs,  their  bodies,  their  health, 
or  their  reputations. 

1.  "  With  regard  to  the  first  subdivision,  or  injuries  affecting  the  life  of 
man,  they  do  not  fall  under  our  present  contemplation  :  being  of  the  most 
atrocious  species  of  crimes,  the  subject  of  the  next  book  of  our  commen- 
taries.* 

2,  3.  "The  two  next  species  of  injuries,  affecting  the  limbs  or  bodies  of 
individuals,  I  shall  consider  in  one  and  the  same  view.  And  these  may  be 
committed,  1.  By  threats  and  menaces  of  bodily  hurt,  through  fear  of 
which  a  man's  business  is  interrupted.  A  menace  alone,  without  a  conse- 
quent inconvenience,  makes  not  the  injury  :  but,  to  complete  the  wrong, 

*  For  injury  tn  life,  in  general,  cannot  be  the  subject  of  a  civil  actio?)  ;  the  civil  remedy  being  mer- 
geH  \n  the  ofience  lo  the  public.  [See  ante,  master  and  servant.  Editor.]  Therefore  no  ^g''°"  ^''' 
lie  for  battery  of  wife  or  servant,  wherebv  death  ensued.  Styles,  317.  1  Lev.  247.  "i  elv.  uJ,  JU.  I 
h<L.  Ravun.  339. 


52  ASSAULT  AND  BATTERY.  [  BOOK  3. 

there  must  be  both  of  them  together.  The  remedy  for  this  is  in  pecuniary 
damafres,  to  be  recovered  by  action  of  trespass  vi  et  armis  ;  this  being  an 
inchoate,  though  not  an  absolute  violence.  2.  By  assault ;  which  is  an  at- 
tempt or  oiTer  to  beat  another,  without  touching  him  :  as  if  one  lifts  up  his 
cane,  or  his  fist,  in  a  threatening  manner  at  another  ;  or  strike  at  him,  but 
misses  him  ;  this  is  an  assault,  insultus,  which  Finch  describes  to  be  •'  an 
unlawful  setting  upon  one's  person.'  This  also  is  an  inchoate  violence, 
amounting  considerably  higher  than  bare  threats  ;  and  therefore,  though 
no  actual  suffering  is  proved,  yet  the  party  injured  may  have  redress  by  ac- 
tion of  trespass  vi  et  armis ;  in  which  he  shall  recover  damages' as  a  com- 
pensation for  the  injury." 

Whether  the  act  does  or  does  not  amount  to  an  assault,  must  generally 
be  collected  from  the  intention.  Thus  it  is  no  assault  or  battery  to  take 
hold  of  persons  with  a  view  to  part  them.  So  abusive  words  alone  cannot 
constitute  an  assault,  and  indeed  may  sometimes  so  explain  the  aggressor's 
intent,  as  to  prevent  an  act,  prima  facie  an  assault,  from  amounting  to  such 
an  injury;  as  where  a  man,  during  assize  time,  in  a  threatening  posture, 
half  drew  his  sword  from  its  scabbard,  and  said,  if  it  were  not  that  it  is  as- 
size time,  I  would  run  you  through  the  body  ;  this  was  held  to  be  no  as- 
sault, the  words  explaining  that  the  party  did  not  mean  any  immediate  in- 
jury.    1  Mod.  3.     Bnl.  N.  P.  15.     Vin.  Ab.  Trespass,  A.  2. 

3.  By  battery  ;  "  which  is  the  unlawful  beating  of  another.  The  least 
touching  of  another's  person  wilfully,  or  in  anger,  is  a  battery  ;  for  the  law 
cannot  draw  the  line  between  different  degrees  of  violence,  and  therefore 
totally  prohibits  the  first  and  lowest  stage  of  it;  every  man's  person  being 
sacred,  and  no  other  having  a  right  to  meddle  with  it,  in  any  the  slightest 
manner.  And  therefore,  upon  a  similar  principle,  the  Cornelian  law  de  i?i- 
juriis  prohibited  pitlsation  as  well  as  verberaiion  ;  distinguishing  verberation, 
which  was  accompanied  with  pain,  from  pulsation,  which  was  attended 
with  none.  But  battery  is,  in  some  cases,  justifiable  or  lawful :  as  where 
one  who  hath  authority,  as  a  parent,  or  master,  gives  moderate  correction 
to  his  child,  his  scholar,  or  his  apprentice.  So  also  on  the  principle  of 
self-defence  :  for  if  one  strikes  me  first,  or  even  only  assaults  me,  I  may 
strike  in  my  own  defence;  and,  if  sued  for  it,  may  plead  son  assault  de- 
mesne, or  that  it  v.'as  the  plaintiff's  own  original  assault  that  occasioned  it. 
In  like  manner,  a  man  mny  justify  an  assault  or  battery  in  defence  of  his 
wife,  child,  or  servant,  and  they  may  justify  the  like  act  in  his  defence.  But 
the  assault  and  battery  justified  must  not  be  in  revenge  or  retaliation  for  an 
injury  already  done,  but  in  prevention  only  of  what  is  anticipated.  See  1 
Selw.  25. 

"  So  likewise  in  defence  of  my  goods  or  possession,  if  a  man  endeavors 
to  deprive  me  of  them,  I  may  justify  laying  hands  upon  him  to  prevent 
him  ;  and  in  case  he  persists  with  violence,  I  may  proceed  to  beat  him 
away."  If  A  enter  the  close  of  B  unlawfully,  B  may  lay  his  hands  en  him 
to  put  him  out,  but  he  must  first  request  him  to  go  out;  Salk  Gil  ;  and 
even  then  he  should  not  strike,  but  lay  his  hands  on  him  only  to  put  him 
out.  o  T.  R.  7G.  If  A  then  resists  forcibly,  B  may  oppose  force  to  force, 
and  any  degree  of  violence  which  self-defence  then  renders  necessary,  will 
be  justifiable.  If  A's  entry  is  forcible,  as  by  breaking  open  a  gale  or  door, 
a  request  is  unnecessary,  for  acts  of  violence  do  not  always  admit  of  par- 
leying. 11  C.  L.  R.  297.  Nor  is  a  request  necessary  in  the  case  of  per- 
sonal property  before  the  exercise  of  ti;e  right  of  delence.  If  the  defen- 
dant pleads  mollitur  manus,  whereas  in  truth  he  used  excessive  and  unne- 
cessary violence,  ihe  plaintiff  may  set  that  out  in  his  replication  by  way  of  new 
assignment.  3  T.  R.  per  Kenyon.  And  where  the  declaration  charged  a 
striking  with  repeated  blows,  and  knocking  plaintiff  dov/n,  a  mere  plea  of 


CHAP.  5.]  ASSAULT  AND  BATTERY.  53 

mollitur  manus  was  not  considered  sufficient.  So  where  an  injury  was  done 
to  plaintiff  by  defendant's  throwing  down  a  ladder  which  the  plaintiff  v/as 
on,  a  plea  that  he  was  in  the  act  of  trespassing  on  defendant,  and  that  the 
defendant  gently  shook  the  ladder,  and  gently  overturned  it  and  threw  the 
plaintiff  down,  doing  as  little  damage  as  possible,  was  held  no  justification 
of  the  excessive  violence  charged.  That  should  have  been  traversed.  8 
T.  R.  299,  300. 

"  In  the  ercercise  of  an  office,  also,  (as  that  of  a  church  warden,)  a  man 
may  lay  his  hands  on  another  and  turn  him  out  of  the  church,  to  prevent 
his  disturbing  the  congregation.  And  if  sued  for  this  or  the  like  battery, 
he  may  set  forth  the  whole  case,  and  plead  that  he  laid  hands  upon  him 
gently,  moUitur  manus  imposuit,  for  this  purpose." 

So  officers  of  the  law  or  of  the  army  may  justify  arrests,  imprisonments, 
and  bodily  punishment,  under  the  orders  of  competent  authority.  Bui.  N. 
P.  19.  In  like  manner  the  noted  John  Anderson,  who  was  takg n  in  cus- 
tody by  the  sergeant  at  arms  of  the  house  of  representatives,  having  sued 
for  the  trespass  and  imprisonment,  the  officer  was  held  justified  by  the  or- 
der of  the  house.     The  case  is  reported  by  Wheaton.     See  also  14  E.  1. 

In  these  cases,  however,  the  officer  who  makes  the  arrest  cannot  justify 
violence  unless  it  is  rendered  necessary  by  resistance.  See  1  Saund.  296. 
1  Selw.  29. 

A  mariner  may  be  corrected  with  moderation  by  the  captain  for  refusing 
to  do  duty.      1  Peters's  Adm.  Cases,  172. 

"  On  account  of  these  causes  of  justification,  battery  is  defined  to  be  the 
unlawful  beating  of  another;  for  which  the  remedy  is,  as  for  assault,  by  ac- 
tion of  trespass  vi  et  armis  ;  wherein  the  jury  will  give  adequate  damages. "^ 

Whether  the  act  is  wilful  or  not,  if  an  injury  is  done,  and  the  party  from 
whom  it  proceeds  was  in  the  commission  of  an  unlawful  or  imprudent  ac- 
tion, or  one  calculated  to  produce  mischief;  or  was  even  careless  in  the 
performance  of  some  lawful  act,  so  that  it  produced  injury  to  another,  he 
is  liable.  Str.  596.  2  H.  &  M.  423.  This  last  was  the  case  of  a  person 
who  was  uncocking  a  gun,  v/hich  went  off  and  wounded  another.  The 
wounded  man  was  considered  entitled  to  his  action.  Nor  is  it  material 
what  is  the  degree  of  violence  with  which  the  act  is  done.  3  E.  602.  Nor 
whether  the  plaintiff  assented  to  it  or  not,  if  it  was  unlawful :  as  if  two 
men  fight  by  consent,  this  consent  is  no  bar  to  the  action  ;  1  Esp.  313; 
though  it  generally  makes  the  damages  nominal,  unless  the  defendant  has 
acted  unfairly.  The  injury,  however,  must  be  immediate,  and  not  conse- 
quential :  2  H.  &,  M.  423.  3  E.  601 :  for  if  consequential,  an  action  on 
the  case  is  the  proper  action.  Where,  however,  A  threw  a  squib,  which 
falling  near  B  he  threw  it  away  lest  it  should  hurt  him,  and  it  struck  C  in 
the  eye  and  put  it  out,  this  action  was  held  maintainable  against  A.  So 
where  A  pushes  a  drunken  man  against  B,  and  hurts  B,  it  is  a  battery.  The 
nice  distinctions  on  this  subject  may  be  seen  in  the  case  of  Scott  vs.  Shep- 
herd. 2  Bl.  R.  892.  3  Wils.  403.  See  1  Sel.  359.  It  is  however  clear, 
that  if  A  commands  B  to  beat  C,  A  is  a  trespasser  as  well  as  B,  for  in  tres- 
passes all  who  are  at  all  guilty  are  principals. 

Every  battery  includes  an  assault,  but  every  assault,  as  we  here  see,  does 
not  imply  a  battery.  And  yet  if  a  man  in  his  declaration  alleges  both  an 
assault  and  batterv,  he  will  recover,  thounh  he  proves  the  assault  only.  4 
Mod.  405. 

4.  "By  Kcuncllng ;  which  consists  in  giving  another  some  dangerous 
hurt,  and  is  only  an  aggravated  species  of  battery.  5.  By  mcyhevi ;  which 
is  an  injury  still  more  atrocious,  and  consists  in  violently  depriving  another 
of  the  use  of  a  member  proper  for  his  defence  in  fight.  This  is  a  battery, 
attended  with  this  aggravating  circumstance,  that  thereby  the  party  injured 


54  ASSAULT  AP^D  BATTERY.  [  book  S. 

is  forever  disabled  from  making  so  good  a  defence  against  future  external 
injuries,  as  he  otherwise  might  have  done.  Among  these  defensive  mem- 
bers are  reckoned  not  only  arms  and  legs,  but  a  finger,  an  eye,  and  a  fore- 
tooth, and  also  some  others.  But  the  loss  of  one  of  the  jaw-teeth,  the  ear, 
or  the  nose,  is  no  mayhem  at  common  law  :  as  they  can  be  of  no  use  in 
fighting.  The  same  remedial  action  of  trespass  vi  et  armis  lies  also  to  re- 
cover damages  for  this  injury,  an  injury  which  (when  wilful)  no  motive  can 
justify,  but  necessary  self-preservation. 

One  remarkable  property  is  peculiar  to  the  action  for  a  mayhem,  viz.  that 
the  court  in  which  the  action  is  brought  have  a  discretionary  power  to  in- 
crease the  damages,  if  they  think  the  jury  at  the  trial  have  not  been  suffi- 
ciently liberal  to  the  plaintiff;  but  this  must  be  done  super  visum  vuheris, 
and  upon  proof  that  it  is  the  same  wound,  concerning  which  evidence  was 
given  to  the  jury.  1  Wils.  5.  Barnes,  106,  153.  3  Salkeld,  115.  1 
Ld.  Rayoi,  176,  339.  I  have  never  known  this  practice  pursued  in  Virgi- 
nia, By  the  act,  1  R.  C.  ch.  15G,  §  2,  persons  convicted  of  certain  descrip- 
tions of  mayhem,  are  sentenced  among  other  things  to  pay  a  fine  of  $1000 
to  the  party  grieved,  besides  being  liable  to  his  action.  "And  here  I  must 
observe,  that  for  these  four  last  injuries,  assault,  battery,  wounding,  and  may- 
hem, an  indictment  may  be  brought  as  well  as  an  action  ;  and  frequently  both 
are  accordingly  prosecuted ;  the  one  at  the  suit  of  the  crown  for  the  crime 
.against  the  public  ;  the  other  at  the  suit  of  the  party  injured,  to  make  him 
a  reparation  in  damages,"  for  the  public  prosecution  is  no  bar  to  the  action 
for  damages;  1  Bos.  &  P.  191  ;  though  it  is  said  it  will  mitigate  damages 
in  the  civil  action.  Chitty.  The  converse,  I  think,  has  been  usually  held 
with  us: — that  recovery  of  damages  in  the  civil  action  will  mitigate  the 
fine. 

Here  I  shall  offer  to  the  student  a  few  remarks  on  tlie  pleadings  and  evi-» 
dence. 

1.  Of  the  declaration.  The  declaration  should  state  the  offence  as  a 
single  and  complete  act,  and  not  with  a  continuando,  that  is,  "  at  divers 
days  continually  from  day  to  day,"  for  each  assault  and  battery  is  a  distinct 
act.  Cow.  8"28.  G  E.  395.  If  the  plaintiff  sues  for  more  than  one  as- 
sault, he  may  have  several  counts  in  his  declaration.  If  he  has  but  one 
count  and  there  are  several  assaults,  he  may  go  for  which  he  pleases,  but 
after  he  has  made  his  election,  he  can  give  no  evidence  of  the  other.  1 
Camp.  47*2.  If  there  were  several  assaults,  and  the  defendant  justifies  one, 
the  plaintiff  may  in  his  replication  make  a  new  assignment  of  the  other.  1 
Selw.  32.  The  day  on  which  the  trespass  is  laid  is  generally  immaterial 
where  the  defendant  pleads  not  guilty,  and  though  a  wrong  day  be  set 
forth,  the  plaintiff  may  recover  on  proof  of  another  day.  provided  it  be  be- 
fore suit  brought.  1  Saun.  24,  n.  1.  Sec  3  H.  &  M.  268.  2  Chitty,  368, 
n.  1. 

The  offence  should  be  charged  positively,  and  not  by  way  of  recital,  as 
"ir/iereas  the  def(3ndant,"  &c.  This  is  called  declaring  with  a  quodcum, 
which  in  trc^^pass  and  assault  and  battery  is  vicious.  2Stra.  021.  2  H. 
&  M.  595,  603.  3  M.  &  M.  127.  But  the  error  is  now  cured  after  ver- 
dict, unless  the  declaration  was  demurred  to.  1  R.  C.  ch.  128,  §  103. 
The  court  will,  however,  at  any  time,  give  leave  before  trial  to  correct  the 
error,  and  even  after  verdict  I  have  known  a  new  trial  awarded  on  payment 
of  costs,  in  order  to  enable  the  party  to  amend,  before  the  late  act  cured 
llie  error. 

Where  the  battery  has  been  done  by  several,  they  may  be  sued  separate- 
ly, or  be  joined  as  def(>ndanls.  But  two  persons  cannot  join  in  bringing 
such  an  action,  though  the  batteries  on  both  may  have  been  simultaneous, 
that  i?,  in  the  same  fight,  for  the  injuries  are  distinct.     Husband  and  wife, 


CHAP.  5]  ASSAULT  AND  BATTERY.  55 

however,  must  join  for  a  battery  of  the  wife  ;  the  husband  because  he  is  in- 
jured in  the  person  of  his  wife,  and  must  pay  the  expenses  of  the  action,-^ 
the  wife  because  if  the  husband  dies  before  judgment,  the  right  survives  to 
her.  2  Lord  Ray.  1208.  Hence  the  declaration  states  the  injury  to  have 
been  ad  damnum  ipsorum.  So  too  the  husband  must  be  joined  in  an  aciion 
brought  for  an  assault  committed  by  the  wife,  and  they  should  join  in  the 
plea  put  in  for  the  wife.     1  Esp.  N.  P.  318. 

The  plaintiff  may  lay  as  an  aggravation,  any  matter  which  would  not 
support  a  distinct  action,  but  not  that  which  would.     Salk.  642. 

2.  As  to  the  plea.  The  general  issue  is  "  not  guilty;"  for  this  denies 
tlie  charge  in  toto,  and  is  the  proper  plea  if  the  party  has  not  committed 
the  injury.  There  are  various  special  justifications,  as  has  already  been 
shov/n,  and  there  are  other  defences  not  yet  mentioned,  such  as  t^ie  statute 
of  limitations,  a  former  recovery,  a  recovery  with  satisfaction  against  one 
of  several  trespassers,  for  the  plaintiff  can  have  but  one  satisfaction  ;  1 
John.  290.  2  H.  8c  M.  355  ;  so  too  a  release  to  all  or  one  of  several  tres- 
passers, is  a  bar  to  an  action  against  any,  notwithstanding  any  agreement  or 
proviso  that  it  shall  only  avail  the  person  to  whom  it  was  given.  2H.  &M. 
38.  In  all  cases  of  justification,  the  defendant  must  plead  the  matter  of 
defence  specially.  Thus  he  must  always  plead  the  defence  of  son  assault 
demense,  and  however  justifiable  he  may  have  been  in  the  battery,  he  can- 
not, on  the  plea  of  not  guilty,  give  evidence  of  his  justification;  for  that  admits 
the  act  which  his  plea  denies.  Indeed  the  plea  of  justification  must  admit 
and  confess  the  act,  or  it  will  be  liable  to  demurrer  ;  and  therefore,  where 
a  man's  horse  ran  away  with  him  without  his  default  and  against  his  will, 
and  hurt  another,  this  matter  was  held  to  be  improperly  pleaded  as  a  justi- 
fication, though  it  would  have  been  good  evidence  to  prove  him  not  guilty  ; 

1  Lord  Ray.  38;  for  by  alleging  it  was  against  his  will,  he  in  fact  denied 
the  trespass. 

In  like  manner  if  the  defendant  pleads  son  assault  demesne,  and  the  plain- 
tiff has  any  justification  for  the  assault  alleged  by  the  plea,  he  must  reply 
that  matter  specially.  Carth.  281.  Where,  however,  the  plaintiff  denies 
the  assault  which  the  defendant  pleads  as  his  justification,  he  replies  that 
the  defendant  committed  the  trespass  of  his  own  wrong,  and  without  the 
cause  alleged  in  the  plea.  This  is  called  a  replication  de  injuria  sua  pro- 
pria absque  tali  causa. 

The  plea  should  always  go  to  the  whole  offence,  unless  where  there  is  a 
matter  of  special  justification  as  to  part,  in  which  case  it  may  be  so  plead- 
ed, but  unless  the  defendant  pleads  not  guilty  as  to  the  rest,  the  plaintiff 
will  have  judgment.  Thus  where  the  declaration  charged  assaulting,  beat- 
ing, and  wounding,  and  the  defendant  as  to  the  assault  and  battery  pleaded 
that  he  was  a  constable  and  arrested  the  plaintiff,  but  said  nothing  about 
the  wounding,  the  court  gave  judgment  for  the  plaintiff.  1  Esp.  318. 
And  a  general  traverse  will  not  do.     1  Lord  Ray.  229. 

By  our  law  the  defendant  may  plead  inconsistent  pleas,  as  not  guilty  and 
justification.  2  Mun.  101,  104.  4  H.  &  M.  277.  See  4  Mun.  4G6.  5 
Mun.  1.  So  he  may  both  demur  and  plead  to  the  same  count  in  the  decla- 
ration. 

Where  there  are  several  defendants,  they  may  join  or  sever  in  their  pleas. 
But  if  they  plead  jointly,  they  cannot  then  set  up  separate  justifications. 

2  Caine'sRep.  108. 

3.  As  to  the  evidence.  On  the  part  of  the  plaintiff.  A  conviction  on  an 
indictment  is  no  evidence  in  a  civil  suit  for  the  same  trespass,  for  the  verdict 
not  being  between  the  same  parties,  the  defendant  could  not  have  used  it 
against  the  j)laintiff,  had  he  been  acquitted:  the  plaintiff,  therefore,  cannot 
use  it  against  him,  since  the  rule  of  evidence  is,  that  it  must  be  mutual.    1 


56  ASSAULT  AND  BATTERY.  [  book  3. 

Str.  GS.  A  confession  of  the  indictment,  however,  is  evidence,  and  con- 
clusive, for  it  is  said  it  estops  the  defendant  from  pleading  not  guilty.  2 
Hawk.  333. 

Though  where  not  guilty  is  pleaded,  the  time  and  place  is  immaterial ; 
yet  where  son  assault  demesne  is  pleaded,  and  the  plaintiff  replies  de  injuria 
sua  propria,  the  plaintiff  is  not  permitted  to  give  evidence  of  a  battery  at 
another  time  and  place  :  for  that  would  be  out  of  the  issue. 

Matter  amounting  to  justification  cannot  be  given  in  evidence  on  the 
plea  of  not  guilty :  matter  of  provocation  at  the  time  of  the  assault  may  be 
given  in  mitigation  of  damages,  and  previous  threats  to  increase  them. 

4.  As  to  the  trial,  verdict,  judgment,  damages,  and  costs.  If  there  be  se- 
veral defendants,  although  they  sever  in  their  pleas  and  issues,  yet  in  Eng- 
land the  same  jury  tries  the  whole,  and  assesses  damages  for  all.*  And 
if  all  the  issues  are  found  for  the  plaintiff,  the  jury  should  find  joint  dama- 
ges and  not  several,  for  each  is  liable  for  the  whole  ;  though  in  criminal 
prosecutions  for  an  assault  and  battery,  &c.,  the  damages  should  be  several 
and  not  joint.  1  Call,  555.  If,  therefore,  in  the  civil  case  a  judgment  be 
entered  for  separate  damages,  it  is  erroneous.  But  before  judgment  the  de- 
fect of  the  verdict  may  be  cured  by  the  entry  of  a  nolle  prosequi  against  all 
but  one,  and  taking  judgment  against  him.  1  H.  &  M.  488.  This,  how- 
ever, is  not  advisable,  unless  that  one  be  solvent,  for  the  responsibility  of 
the  others  is  thereby  lost.  See  Selw.  33.  6  T.  R.  199.  The  jury,  in  es- 
timating their  damages,  should  give  what  they  think  the  most  culpable 
ought  to  pay.  4  Esp.  Ca.  158.  They  may,  however,  find  some  guilty 
and  others  not  guilty,  and  where  no  part  of  the  plaintift's  evidence  applies 
to  one,  he  must  have  a  verdict,  and  the  plaintiii"  must  go  on  against  the 
rest. 

When  there  are  various  defendants,  some  of  whom  only  have  appeared 
and  pleaded,  and  the  jury  find  them  guilty  and  assess  damages,  the  plain- 
tifi'  may  go  on  against  the  others  and  assess  damages  against  them,  and 
finally  take  judgment  de  meliorihus  damnis,  i.  e.  for  the  highest  damages  as- 
sessed against  any  one,  entering  a  nolle  prosequi  against  the  rest.  Carth. 
19.  6  T.  U.  199.  1  H.  &  M.  488.  In  England,  it  seems,  the  some  jury 
assesses  damages  as  to  all,  but  with  us  where  some  have  appeared  and 
pleaded  to  issue,  whilst  others  have  not,  it  is  very  usual  to  try  the  issues 
which  are  made  up.  If  the  plaintiff  is  satisfied  with  the  amount  of  dama- 
ges found  against  them,  he  niay  enter  a  nolle  prosequi  as  to  the  others.  If 
he  is  not,  he  proceeds  against  them  without  taking  judgment  against  the 
first,  tries  the  issues  in  succession  as  they  are  made  up,  and  finally  takes 
judgment  de  melioribus  damnis.  See  1  H.  &  M.  488.  If,  however,  he  takes 
judgment  against  the  first,  lie  gives  up  all  future  proceedings  against  the 
others,  except  for  costs.     See  1  H.  &  M.  497,  498. 

If  in  an  action  of  assault  and  battery  in  the  superior  courts,  the  damages 
assessed  do  not  amount  to  $lG.6o,  the  plaintiff  recovers  no  costs.  And  if 
in  a  like  action  in  the  county  court,  he  recovers  less  damages  than  $6.66, 
he  recovers  no  costs.  1  R.  C.  ch.  128,  §  20.  And  when  there  are  several 
defendants,  some  of  whom  are  acquitted,  they  shall  recover  costs  unless  the 
court  certifies  there  was  reasonable  cause  for  making  them  defendants,  and 
shall  order  otherwise.     Ibid. 

4.  "Injuries  affecting  a  man's  health  are  where  by  any  unwholesome 
practices  of  another,  a  man  sustains  any  apparent  damage  in  his  vigor  or 
constitution.  As  by  selling  him  bad  provisions,  or  wine,  [2  E.  314,]  by 
the  exercise  of  a  noisome  trade,  which  infects  the  air  in  his  neighborhood, 
[of  which  we  shall  speak  under  the  head  of  nuisances,]  or  by  the  neglect 
or  unskilful  management  of  his  physician,  surgeon,  or  apothecary.     For 

•  See  Tidd,  591. 592.    WiU.  Dae.  DamagcJ,  D. 


CHAP.  5.]  CASE.  $7 

it  hath  been  solemnly  resolved,  that  »ia/a /jraxfs  is  a  great  misdemesnor  and 
offence  at  common  law,  whether  it  be  for  curiosity  and  experiment,  or  by 
neglect;  because  it  breaks  the  trust  which  the  party  had  placed  in  his  phy- 
sician, and  tends  to  the  patient's  destruction.  Thus,  also,  in  the  civil  law, 
neglect  or  want  of  skill  in  physicians  or  surgeons,  '  culpae  adnumerantur, 
veititi  si  medlcus  curationem  derdiquerit,  male  quempiam  secuerit,  aut  perpe- 
ram  ei  medicamentum  dederit.'  These  are  wrongs  or  injuries  unaccom- 
panied by  force,  for  which  there  is  a  remedy  in  damages  by  a  special  action 
of  trespass  upon  the  case."  [See  1  Saun.  312,  n.  2.  1  Lord  Ray.  213. 
8E.  348.     2Wils.359.] 

In  England,  it  seems,  a  distinction  is  taken  between  surgeons  and  physi- 
cians, the  profession  of  the  latter  being  deemed  honorary,  and  its  professors 
neither  liable  to  action  nor  entitled  to  recover  fees.  Peake's  C.  N.  P.  9G, 
123.  4  T.  R.  317.  With  us,  I  should  think  the  general  usage  and  under- 
standing of  the  country  would  place  physicians  in  both  respects  on  the  foot- 
inor  of  surgeons. 

"  The  action  of  trespass,  or  transgression,  on  the  case,  is  an  universal  re- 
medy, given  for  all  personal  wrongs  and  injuries  without  force  ;  so  called 
because  the  plaintiff's  whole  case  or  cause  of  complaint  is  set  forth  at  length 
in  the  original  writ.  For  though  in  general  there  are  methods  prescribed, 
and  forms  of  action  previously  settled,  for  redressing  those  wrongs,  which 
most  usually  occur,  and  in  which  the  very  act  itself  is  immediately 
prejudicial  or  injurious  to  the  plaintiff's  person  or  property,  as  battery,  non- 
payment of  debts,  detaining  one's  goods,  or  the  like  ;  yet  where  any  spe- 
cial consequential  damage  arises,  which  could  not  be  foreseen  and  provided 
for  in  the  ordinary  course  of  justice,  the  party  injured  is  allowed,  both  by 
common  law  and  the  statute  of  Westm.  2,  ch.  24,  to  bring  a  special  action 
on  his  own  case,  by  a  writ  formed  according  to  the  peculiar  circumstan- 
ces of  his  own  particular  grievance.  For  wherever  the  common  law  gives 
a  right  or  prohibits  an  injury,  it  also  gives  a  remedy  by  action  :  and,  there- 
fore, wherever  a  new  injury  is  done,  a  new  method  of  remedy  must  be  pur- 
sued. And  it  is  a  settled  distinction,  that  where  an  act  is  done  which  is  ire 
itself  an  itiimediate  injury  to  another's  person  or  property,  there  the  remedy 
is  usually  by  an  action  of  trespass  vi  et  armis  ;  but  where  there  is  no  act 
done,  but  only  a  culpable  omission  ;  or  where  the  act  is  not  immediately 
injurious,  but  only  by  consequence  and  collaterally  ;  there  no  action  of  tres- 
pass vi  et  armis  will  lie,  but  an  action  on  the  special  case,  for  the  damages 
consequent  on  such  omission  or  act." 

There  are  few  subjects  which  have  given  rise  to  more  discussion  than  the 
question,  whether  for  certain  wrongs,  an  action  of  trespass  vi  et  armis,  or 
an  action  of  trespass  on  the  case,  is  the  proper  remedy.  It  is  admitted  on 
all  hands,  that  for  any  direct  and  immediate  injury,  occasioned  by  the  act  of 
the  defendant  at  the  time  the  injury  is  sustained,  the  prosecution  is  trespass, 
and  that  case  only  lies  where  the  injury  is  consequential.  But  what  is  di- 
rect and  immediate,  or  only  consequential,  is  often  the  matter  of  dispute. 
The  subject  is  usually  illustrated  by  the  following  case.  If  a  log  be  impro- 
perly thrown  into  the  highway,  and  in  the  act  of  falling  it  hit  the  plaintiff, 
the  injury  is  immediate,  and  the  proper  action  trespass.  But  if  after  it  has 
been  thrown  there  he  had  tumbled  over  it  and  was  hurt,  the  injury  is  con- 
sequential, and  the  proper  remedy  is  case.  This  matter  was  much  discuss- 
ed in  Scott  vs.  Shepherd,  (2  Bl.  Rep.  892,)  where  the  defendant  threw  a 
lighted  squib,  which  falling  near  A,  he  in  self-defence  caught  it  up  and  threw 
it  from  him,  and  it  struck  and  injured  B.  It  was  in  this  case  decided  that 
trespass  was  the  proper  action.  Judge  Blackstone  himself  dissenting.  The 
true  criterion  seems  to  be,  however,  whether  the  injury  received  is  by  a 
force  impressed  bv  the  defendant.  If  it  be  the  result  of  the  original  fores' 
■  Vol.  2— 8 


58  SLANDER.  [  BOOK  3. 

applied  by  him,  trespass  lies,  and  it  is  iinmaterial  wiiether  the  injury  be 
willul  or  not,  if  the  act  be  unlawful,  or  if  a  lawful  act  is  done  without  d-ue 
care.  3  E.  599.  Thus  if  a  man  in  the  night  drives  his  carriage  so  negli- 
gently that  he  runs  against  another,  though  he  did  not  intend  it,  trespass 
lies  ;  but  if  he  had  placed  it  in  the  road,  and  the  plaintiff  was  injured  by 
running  against  it,  case  would  be  the  proper  form  of  action.  See  1  Selw.  357, 
fvc.  3  Bur.  1556.  5  T.  R.  619.  1  B.  &.  P.  47-2.  2  N.  R.  117.  8  T. 
R.  188.  See  also  2  H.  &,  M.  423,  where  this  subject  is  examined- much 
at  large. 

5.  "Lastly,  injuries  affecting  a  man's  reputation  or  good  name  are,  first,: 
by  malicious,  scandalous,  and  slanderous  words,  tending  to  his  damage  and 
derogation.  As  if  a  man  maliciously  and  falsely  utter  any  slander  or  false 
tale  of  another ;  which  may  either  endanger  him  in  law,  by  impeaching, 
him  of  some  heinous  crime,  as  to  say  that  a  man  hath  poisoned  another, 
or  is  perjured ;  or  which  may  exclude  him  from  society,  as  to  charge  him 
with  having  an  infectious  disease;  or  which  may  impair  or  hurt  his  trade 
or  livelihood,  as  to  call  a  tradesman  a  bankrupt,  a  physician  a  quack,  or  a 
lawyer  a  knave.  Words  spoken  in  derogation  of  a  peer,  a  judge,  or  other 
great  officer  of  the  realm,  which  are  called  scandalum  magnatum,  are  held- 
to  be  still  more  heinous,"  in  England,  and  give  rice  to  a  peculiar  action 
which  seems  to  have  arisen  from  two  ancient  statutes  not  in  force  with  us; 
so  that  I  presume  this  offence  is  not  recognized  by  our  laws.  Yet  words 
tending  to  scandalize  a  magistrate  or  person  in  public  trust,  "  are  reputed 
more  liighly  injurious  than  when  spoken  of  a  private  man.  [Lord  Kay. 
1369.]  It  is  said,  that  formerly  no  actions  were  brought  for  words,  unless 
the  slander  was  such  as  (if  true)  would  endanger  the  life  of  the  object  of  it. 
But  too  great  encouragement  being  given  by  this  lenity  to  false  and  mali- 
cious slanderers,  it  is  now  held  that  for  scandalous  words  of  the  several 
species  before  mentioned,  (that  may  endanger  a  man  by  subjecting  him  to 
the  penalties  of  the  law,  may  exclude  him  from  society,  may  impair  his  trade, 
or  may  affect  a  peer  of  the  realm,  a  magistrate,  or  one  in  public  trust,)  an  ac- 
tion on  the  case  may  be  had,  without  proving  any  particular  damage  to 
have  happened,  but  merely  upon  the  probability  that  it  might  happen.  But 
with  regard  to  words  that  do  not  thus  apparently,  and  upon  the  face  of 
them  import  such  defamation  as  will  of  course  be  injurious,  it  is  necessary 
that  the  plaintilf  should  aver  some  particular  damage  to  have  happened; 
which  is  called  laying  his  action  with  a  per  a,uod.  As  if  I  say  that  such  a 
clergyman  is  a  bastard,  he^annotfor  this  bring  any  action  against  me,  un- 
less he  can  shew  some  special  loss  by  it ;  in  which  case  he  may  bring  hia 
action  against  me,  for  saying  he  was  a  bastard,  per  quod  he  lost  the  presen- 
tation to  such  a  living.  In  like  manner,  to  slander  another's  man  title,  by 
spreading  such  injurious  reports,  as,  if  true,  would  deprive  him  of  his  estate, 
(as  to  call  the  issue  in  tail,  or  one  who  hath  land  by  descent,  a  bastard,)  is 
actionable,  provided  any  special  damage  accrues  to  the  proprietor  thereby; 
as  if  he  loses  an  opportunity  of  selling  the  laud.  But  mere  scurrility,  or 
opprobious  words,  which  neither  in  themselves  import,  nor  are  in  fact  at- 
tended with,  any  injurious  effects,  will  not  support  an  action.  So  scandals, 
which  concern  matters  merely  spiritual,  as  to  call  a  man  heretic  or  adulte- 
rer, are  cognizable  only  in  the  ecclesiastical  court ;  unless  any  temporal  da- 
mage ensues,  which  may  be  a  foundation  for  a  per  quod.  Words  of  heat 
and  passion,  as  to  call  a  man  a  rogue  an  J  rascal,  if  productive  of  no  ill  con- 
sequence, and  fiot  of  any  of  the  dangerous  species  before  mentioned, 
are  not  actionable  :  neither  are  words  spoken  in  a  friendly  manner,  as  by 
way  of  advice,  admonition,  or  concern,  without  any  tincture  or  circumstance 
of  ill-will  :  for,  in  both  these  cases,  (hoy  are  not  inaliciously  spoken,  which. 
ii  part  of  the  definition  of  slander." 


CHAP.  5.]  SLANDER.  59 

The  law  of  Virginia  which  was  framed  for  the  suppression  of  duellincr, 
with  a  view  of  affording  a  remedy  for  ordinary  insuhs,  provides  that  "  all 
words  which,  from  their  usual  construction  and  common  acceptation  are 
considered  insults,  and  lead  to  violence  and  breach  of  the  peace,  shall  be 
actionable,  and  the  jury  are  declared  to  be  the  sole  judges  of  Irhe  damages 
sustained  ;  saving,  however,  to  the  court,  the  power  of  granting  a  new  tri- 
al." 1  R.  C.  ch.  157,  §  8.  This  clause  of  the  act  has  had  no  good  effect, 
since  those  for  whom  it  was  intended  never  avail  themselves  of  it,  and  it  has 
proved  highly  injurious  by  multiplying  petty  and  vexatious  actions  of  slander. 
Before  its  passage  it  was  often  a  matter  of  question  whether  the  words 
charged  in  the  declaration  were  actionable  or  not,  and  the  books  are  full  of 
cases  on  the  subject.* 

There  can  only  be  one  defendant  in  an  action  of  slander,  except  in  the 
case  of  a  slander  by  a  wife,  in  which  case  she  and  her  husband  must  both 
be  joined. 

The  doctrine  which  formerly  prevailed,  that  words  spoken  are  to  be  un- 
derstood in  mitiori  sensu,  has  long  since  been  exploded.  The  rule  now  is 
to  interpret  them  as  they  were  understood  by  the  by-standers.  1  Wash. 
152.  2  Mun.  193.  9  E.  93.  The  whole  of  what  is  said  must  be  taken 
together,  for  one  part  may  explain  or  mitigate  the  enormity  of  the  other. 
4  Co.  19. 

Of  the  declaration.  It  must  contain  a  direct  charge  that  the  words  were 
spoken  of  the  plaintiff  by  the  defendant,  a  mere  recital  not  being  suffi- 
cient to  sustain  a  verdict.  4  Mun.  261.  This  may,  perhaps,  be  now  cur- 
ed by  the  verdict,  by  an  interpolation  made  in  the  act  of  Jeofails  at  the  re- 
visal  of  1819.  1  R.  C.  ch.  128,  §  103.  Yet  it  is  still  bad  upon  demurrer. 
The.  student  will  observe,  however,  that  the  declaration  in  slander  usually 
begins  with  a  recital  of  the  good  character  of  the  plaintiff,  &.c.  And  if  it 
then  proceeds  to  a  direct  averment  of  the  charge,  saying  "  nevertheless  the 
defendant  not  regarding  the  premises,  spoke,  &c.  of  and  concerning  the 
plaintiff,  &c."  it  is  good.  But  if  it  be  only  recital  throughout,  it  is  defec- 
tive. It  must  also  clearly  appear  that  the  words  were  spoken  of  the  plain- 
tiff, and  for  this  purpose  the  introduction  to  the  charge  usually  states  a  col- 
loquium, or  a  "  conversation  of  and  concerning  the  plaintiff."  If  this  be 
not  done,  or  if  the  words  do  not,  without  it,  clearly  import  that  they  relate 
to  the  plaintiff,  the  declaration  is  defective.  2  Mun.  143.  If  they  do  im- 
port it,  it  is  not  so.     1  Wash.  150. 

The  declaration  should  also  set  forth  the  words  spoken  ;  yet  after  a  ver^ 
diet,  a  declaration  charging  certain  words,  "  or  words  of  the  like  import,^' 
was  held  good.  4  Mun.  2G0.  And  where  the  words  do  not  of  themselves 
contain  a  charge  of  a  slanderous  nature,  without  words  of  reference  or  ex.- 
planatory  meaning,  it  may  be  supplied  by  proper  imiendos.  The  inueudo, 
however,  can  never  be  permitted  to  extend  the  meaning  beyond  the /air  im- 
port of  the  words  themselves  ;  nor  can  it  ever  make  the  person  certain, 
where  it  is  uncertain  from  the  words  themselves  who  is  meant.  As  if  the 
slander  were,  "one  of  the  witnesses  in  such  a  suit  was  perjured,"  no  imi' 
endo  could  explain  which  was  meant,  unless  something  farther  was  said  to 
point  out  the  person  intended. 

Where  the  action  is  brought  for  a  slander  by  which  the  plaintiff  has  sus- 
tained a  particuar  damage,  as  for  loss  of  preferment,  loss  of  business,  loss 
of  marriage  or  of  service,  it  should  be  always  laid  with  a  p^r  quod, — "  tchere- 
byhe  lost  his  business."  And  in  such  actions  for  injury  to  a  person  in  his 
trade  or  business,  it  is  also  necessary  to  set  forth  the  plaintiflF's  business, 
and  that  the  words  were  spoken  "  in  a  conversation  concerning  the  plain- 

*  I  presutno  sucli  qnostlon?  cnn  now  scarcely  arisR.  Vet  the  ftiulent  may  consult  Mr.  Cliilty'siiote 
to  Uiis  portion  of  tli'j  Coinmeutarics,  v.ijereJie  will  liud  much  matter  thrown  together  oi)  the  subji'Ci. 


60  SLANDER.  [book  3. 

tiffs  trade  or  business  ;  Salk.  694  ;  though  this  is  dispensed  with  where  the 
words  themselves  clearly  refer  to  it.  '2  Lev.  6'2.  1  Wash.  150.  See  2 
Saun.  307,  a.     1  Saun.  242,  n.  3.     1  Lev.  280. 

0/  the  plea.  The  general  issue  is  "  not  guilty,"  or  a  denial  of  the 
charge.  I3esides  this  plea,  the  defendant  may  plead  various  justifications, 
but  they  must  always  be  pleaded  specially,  and  cannot  be  given  in  evidence 
on  the  general  issue.  Thus  the  defendant  may  plead  that  tlie  words  spo- 
ken were  true,  and  if  he  proves  it  he  is  absolved  from  damages.  So  he 
may  plead  that  they  were  spoken  by  him  as  counsel  or  witness  in  a  cause, 
provided  they  appear  to  have  been  pertinent  to  the  matter  in  question.  So 
if  words  are  spoken  without  malice  or  intention  to  defame,  but  confiden- 
tially and  merely  from  motives  of  friendship  to  the  person  to  whom  the  com- 
munication is  made,  they  may  be  justified :  as  where  one,  being  asked, 
warned  a  friend  not  to  trust  the  plaintiff  in  the  sale  of  a  horse  to  him, 
saying  his  circumstances  were  failing,  and  he  would  soon  be  a  bankrupt ;  or 
where  the  defendant,  in  reply  to  an  enquiry  as  to  the  character  of  a  servant, 
spoke  disadvantagcously  of  her.  2  Esp.  502.  A  defendant  moreover  may 
plead  that  he  heard  the  v/ords  from  another  person,  a7id  that,  at  the  time  of 
speaking  them,  he  gave  up  his  author.  7  T.  R.  17.  But  both  these  matters 
must  be  alleged,  to  constitut-c  a  good  plea.  See  4  Barn.  &  Aid.  604,  &c. 
6  Eng.  Ca.  535.  See,  also,  3  Barn.  &  Cres.  24.  10  C.  L.  R.  6.  4  Barn. 
&.  Cres.  247.  10  C.  L.  R.  324.  It  would  seem,  also,  from  the  case  here 
cited,  that  the  repetition  of  the  slander  must  have  been  without  malice,  and 
for  some  fair  and  reasonable  cause  ;  and  it  further  appears  that  it  is  not  a  jus- 
tification that  the  party  heard  the  slander  uttered  by  counsel  on  the  trial  of 
a  cause  ;  for  though  justifiable  in  counsel  on  grounds  of  policy,*  there  is  no 
such  reason  for  permitting  another  to  repeat  what  the  counsel  has  said.  4 
Barn.  &  Cres.  473. 

A  plea  that  the  defendant  was  insane  when  he  spoke  the  words,  it  would 
seem,  ought  to  be  supported  ;  for  even  after  a  verdict  the  defendant  had  re- 
lief in  equity  on  that  ground.     5  Mun.  466. 

The  pleas  of  the  statute  of  limitations,  of  a  former  recovery,  of  a  release, 
of  accord  and  satisfaction,  and  aibitramcnt  and  award,  are  all  good  pleas  in 
bar  of  this  action.     The  act  of  limitatious,  however,  it  is  said,  is  no  plea  to 

*  On  somp  nrcasions  it  If  jiislifialile  to  titter  slandpr  of  anotlier,  in  olliers  it  is  cxnisalile,  provided  it 
be  uttered  witliout  exprci-s  inaliee.  I'.ac.  Al).  .Slander,  I).  4.  ]  J{.  <So  1'.  527.  8tvles,  4G,  2.  Cro. 
Jac.  90.  1  lioll.  Al).  Ii7.  i2  liiirr.  !;09.  J  Vin.  Ab.SlO.  Ii  is  justifiable  lor  a  harrisi*!:- to  use  s-candHJ- 
hltvi  expressions  in  siippoi  t  ol  liis  client's  cause,  and  pertinent  thereto.  1  ftlaule  &  Sei.  230.  Holt 
L.L.  1  Holt's  Rep.  531.  1  Ii.&A.ti32.  And  no  false  or  scandalous  inatlerconlained  in  nrtieles  of 
the  peace  exhibited  to  justices,  or  any  oilier  proreedings  in  a  regular  court  of  justice,  where  the 
court  has  jurisdiciion,  {i)yer,  285.  4  Co.  14.  Holt's  L.  Ij.  179,)  or  before  the  house  of  commons,  {I 
(Saiind.  J:U.  2,3,  n,  I.  J  M.  &  S.  280.  3  'J'aunt.  451),)  will  be  actionable.  A  pelitiuu  or  memorial, 
addressed  by  a  Iradesman  to  the  secrelary  at  war,  complaining  of  the  conduct  ol  a  half-pay  oflicer  in 
rot  payinij  his  debts,  and  slating  the  fads  of  liis  case  b  ma  fide,  is  not  actionable  as  a  libel.  And  evi- 
dence shewing  the  occasion  of  the  writing,  and  his  belief  of  ijie  facts  staled,  may  lie  given  under  the 
Ceneral  issue.  6  I'J.  >fcA.  1)12.  1  Dow.  <&,  Ily.  252.  'I'lie  dcclarauon  o(  a  court  marlial,  that  the 
charge  of  the  prosecutor  was  malicious  and  groundless,  and  that  his  conduct  in  lalsely  calumnialinj; 
the  accused  was  highlv  injurious  to  tlie  service,  will  not  s ubjecl  the  presidciK  to  an  action  li>r  a  libel 

fr.r    li-,.,;nn  ,tr.l  I  .'n..„.l    ......1.    .^»..l»  ,.»  <  !» ...I    I  r.    >  I. n  :.■  or.r,  t^  ..n<>    ..('  ........  ll  f  ..  I    ..T  ll.n    r,fl',,, »»..,„^    ... 


grounds  01  dismissal.  :j  T.iunt.  '3jb.  Ilicse  words,  "the  Kev.  Jolm  liobmsou  anil  !Mr.  .lames  Ko- 
hinson,  iiiliabilanis  of  ihi.^  town,  not  being  persons  lliaf  the  proprietors  and  aiintial  subscribers  think 
it  proper  10  lussoci.iU!  with,  are  exclude.!  ilii.-i  room,"  published  by  po.>tiiig  a  paper  on  whicii  they 
were  written,  purporting  to  be  a  regulation  of  a  particularsociety,  were  helil  not  to  be  a  libel.  1  I'rice, 
11.  It  is  also  lawful,  vilhout  tiiiilice,  lo  circiiliite  a  slanderous  report  of  another,  which  turns  out  iin- 
Irue.  provided,  at  (he  time  of  publishing  such  slander,  the  narrator  gives  up  the  author,  and  he  vary 
rot  from  the  fust  statemcnl,  and  be  ignorant  of  the  falsity.  (2  East  l{ep.  42().  3  15.  <.V  V.  I-jO.  7  'I'. 
K.  17.)  The  reason  assigned  in  12  Co.  131,  is,  ihat  if  the  author  had  been  named,  his  credit  might 
liave  been  in  so  low  fsiinialioii,  llial  ihepaiiy  slandered  mi?,ht  not  have  sufiV-red  Irom  the  impiitalion; 
and  Lord  Ivrnjon  adds,  "  it  is jnst.llial,  \»  lien  a  pci.soii  icpiMl.*  any  sUiider  against  another,  he  should 
fit  the  same  liiric  declare  from  whom  he  heaid  it,  and  give  ilie  very  words,  in  order  that  the  party  in- 
jured may  sue  the  aiuhor  of  the  slaiidnr."  7  T.  K.  J7.  5  Mast,  463.  He  miisi  ri^peatllio  precise 
words,  so  asto  give  (he  party  a  precise  remedy  .ngainst  the  autl)or  ol  tlje  slaii  ler,  aiul  it  will  not  be  :i 


CHAP.  5.]  SLANDER.  61 

an  action  for  slander  of  title.  2  Esp.  519.  Nor  is  it  a  good  pie  ain  such 
action  that  no  injury  was  designed  by  the  defendant.     3  Call,  5G8. 

Of  the  evidence.  It  is  sufficient  if  the  substance  of  the  words  charged 
in  the  declaration  be  proved.  Bull.  N.  P.  5.  And  though  all  the  words 
stated  in  any  one  count  be  not  proved,  it  is  enough  if  some  actionable 
words  set  forth  in  it  are.  2  Bl.  R.  790.  But  a  charge  that  words  were 
spoken  of  a  man  behind  liis  back,  has  been  deemed  unsupported  by  proof 
of  the  words  having  been  said  to  his  face  :  for  the  latter  is  not  so  deliberate 
or  maliciouS;  and  therefore  more  excusable.  See  4  T.  R.  217.  So  words 
laid  affirmatively  are  not  supported  by  proof  of  words  spoken  interrogative- 
ly.    8  T.  R.  150. 

Where  a  colloquium  is  necessary,  it  must  be  proved,  and  the  words  are 
charged  to  be  spoken  in  reference  to  a  person's  business,  it  ought  to  be 
proved  that  he  was  engaged  in  that  business,  unless  the  words  themselves 
imply  it.     8  T.  R.  -305.     4  T.  R.  356.     1  New.  Rep.  196,  203. 

Where  the  plaintiff  lays  special  damage  and  fails  in  proof  of  it,  he  may 
yet  recover  for  the  words  themselves  under  our  act,  if  the  jury  thinks  them 
actionable  ;  otherwise  not;  for  the  rule  is,  that  where  words  are  not  actionable, 
and  special  damage  is  laid,  it  must  be  proved  or  the  plaintiff  is  non-suited ; 
but  if  the  words  are  actionable,  he  will  recover  though  he  does  not  prove 
the  special  damage.     2  Esp.  520. 

After  proving  the  words  laid,  the  plaintiff  may,  it  is  said,  give  evidence  of 
other  expressions  as  a  proof  of  ill  will,  provided  they  are  not  actionable.  2 
Esp.  520.  See,  however,  Phil,  Evidence,  [140. J  How  this  rule  will  now 
be  applied  since  the  act  making  all  words  actionable  at  the  discretion  of  the 
jury,  I  am  not  prepared  to  say. 

The  plaintif!'  may  give  evidence  of  his  own  good  character  to  enhance 
damages.     Phil.  [145.] 

Evidence  for  the  defendant.  The  defendant  cannot  be  admitted  to  prove 
the  plaintifFs  general  character  as  a  provoking  man,  or  that  the  plaintiff  had 
slandered  him  and  his  family  before  he  slandered  the  plaintiff.  6  Mun. 
465.  See  Phil.  [147.]  But  he  may  in  many  cases  be  allowed  to  give  ev- 
idence of  the  plaintiff's  general  character  in  reference  to  the  subject  of  the 
charge  in  mitigation  of  damages  ;  Phil.  [146;]  for  a  person  of  disparaged 
fame  is  not  entitled  to  the  same  measure  of  damages  as  one  whose  charac- 
ter is  unblemished. 

justifination  to  repeat  the  general  efTect  or  pMvport  of  tlie  wordp.  2  East,  426.  And  it  is  not  lawful 
to  reduce  verbal  slander  into  writing,  and  pnljjish  il,  unless  in  confidence  and  \yithont  malice.  2  East 
R,  4-6.  1  T.  R.  40.  3  15.  &  P.  587.  And,  therefore,  a  plea  to  a  declaration  for  a  iibel,  that  it  was 
copied  from  another  newspaper,  setting  forth  the  proprietois  of  such  newspaper,  is  no  justification, 
as  it  did  not  set  forth  thnt  they  were  the  original  authors  of  ilie  liljel;  4  B.  &.  A-  603  ;  and,  it  seems, 
that  if  they  had  been  named  hy  the  defendant  as  such,  in  his  puldication,  that  would  not  amount  to  a 
justification.  Id:  A  servant  cannot  maintain  an  action  against  his  former  master  (or  words  spoken 
or  written,  giving  him  a  character,  even  though  the  master  make  specific  charges  of  fraud,  unless  the 
latter  prove  the  falsehood  and  malice  oi'tlie  charges.  Bui.  N.  P.  8.  3  Esp.  201.  J  Camp.  267.  IT. 
R.  110.  4  Burr.  242.5.  1  Carr.  279.  A  master  is  not  generally  bound  to  prove  the  truth  ol  the  cha- 
racter he  gives  to  a  servant,  yet  if  he  officiously  state  any  trivial  misconduct  of  the  servant  to  a  former 
master,  in  order  to  prevent  him  giving  a  second  clmracier,  and  then  himself,  upon  application,  give 
the  servant  a  bad  character,  the  truth  of  which  he  is  not  able  to  prove,  an  action  is  maintainable 
against  him.  Id.  ibid,  and  3  B.  &.P.587.  and  Holt  L.  L.  201.  So  a  letter  written  or  words  spoken 
to  a  father  in  relation  to  some  supposed  fault  of  his  children,  are  excusable.  2  Brown.  151.  2  Burn 
E.  L.  126,  779.  1  Vm.  Ab.  540,  60.  Or  if  the  words  are  innocently  read,  as  a  story  out  of  history, 
Qo.  .lac.  91,  or  were  spoken  in  a  sense  not  defamatory,  4  Rep.  12,  or  confidentially,  as  a  warning 
against  the  nial-practices  of  another.  1  Camp.  267.  The  repeating  or  reading  a  libel  out  of  merri- 
ment, if  malicious,  is  actionable;  9  Rep.  39  ;  but  if  there  be  no  malice,  it  is  said  to  be  otherwise. 
Moore,  6-7.  9  Rep.  59.  It  is  not  a  libel  if  a  party  deeply  interested  in  the  investigation  oi  any  fact 
should,  as  one  of  the  means  of  investigation,  make  such  a  wiitten  enquiry  after  another,  as  amoimls,'to 
the  imputation  of  a  crime.  Even  where  such  enquiry  should  not  appear  to  be  made  with  a  view  to- 
wards a  legal  proceeding,  yet  if  done  buna  fide,  and  with  an  lionest  intention,  the  law  will  protect 
sucli  a  publication,  Delflny  w.  Jones,  4  Esp.  N.  P.  191.  Holt's  L.  L.  184;  but  if  the  legal  object  might 
have  l)een  obtained  by  means  less  injurious,  then  an  action  is  sustainable.  2  Stark.  297.  [See  also 
4  B.  &L  C.  247.J  Chilly. 

If  there  be  judgment  by  defjiult  and  a  writ  of  enquiry,  the  jury  may  find  more  than  nominal  da- 
mages without  any  evidence  on  the  part  of  the  plaintiff.    3  Barn.  &  Crcs.  423.    10  C.  L.  R.  139. 


62  LIBELS.  [book  3. 

It  has  been  a  matter  of  contest  wliether  the  defendant  can  give  in  evi- 
dence matters  not  amounting  to  actual  proof,  in  order  to  shew  a  probable 
ground  of  suspicion,  and  thus  mitigate  the  damages.  It  is  admitted,  in- 
deed, that  the  truth  of  the  words  cannot  be  given  in  evidence  in  mitigation, 
or  in  other  words,  ihat  what  amounls  to  a  complete  justification  cannot. 
13  John.  475.  14  John.  Z-^i.  Phil.  146.  But  in  Knobell  vs.  Fuller,  it 
was  decided  that  circumstances  of  suspicion  not  amounting  to  complete 
justification,  miglit  be  given  in  evidence  in  mitigation  of  damages.  Peake's 
'£v.  287.  App.  xcii.  This  doctrine  seems,  however,  to  be  decidedly  con- 
tradicted in  our  courts.  5  Muu.  16.  6  Mun.  465.  It  has  therefore  be- 
come, perhaps,  dithcult  to  decide  what  course  is  most  prudent  for  a  defen- 
dant who  can  shew  strong  grounds  of  suspicion,  yet  not  amounting  to  full 
proof. 

It  has  been  decided,  that  on  the  plea  of  justification  of  a  charge  of  per- 
jury \n  a  court  of  record,  the  defendant  cannot  give  paroi  evidence  of  Vi'hat 
the  plaintiflf  swore,  without  producing  a  copy  of  the  record  of  the  trial  to 
shew  that  the  testimony  was  material.  3  H.  &  M.  388.  This  was  before 
the  passage  of  the  duelling  act.  1 11.  C.  ch.  157,  §  8.  That  act,  however, 
has  not,  1  presume,  changed  the  law  upon  the  point. 

The  verdict,  if  for  the  plaintitf,  in  an  action  of  slander,  is  for  so  much  in 
damages  as  the  jury  deem  a  compensation  for  the  injury  sustained  by  him. 

If  in  the  superior  court  the  verdict  is  for  less  than  $  16.66,  or  in  the  county 
court  for  less  than  $6.66,  the  plaintiff  gets  no  costs.     1  R.  C.  ch.  128,  §  20. 


CHAPTER  VI. 

LIBELS. 

A  second  way  of  affecting  a  man's  reputation  is  by  printed  or  written  li- 
bels, pictures,  or  signs,  and  the  like.  5  Co.  125.  6  Bac.  Libel.  Com.  Dig. 
Libel.  1  Saun.  132,  n.  2.  2Camp.511.  And  though  the  rules  in  relation 
to  slander  apply  for  the  most  part  also  to  libels,  yet  are  there  several  impor- 
tant distinctions  between  them. 

1.  Verbal  slander  was  not  at  common  law  actionable  unless  it  charged 
an  offence  or  imputed  a  contagious  disorder,  or  related  to  the  profession  or 
calling  of  the  party,  or  induced  some  special  damage.  But  written  slan- 
der or  libels  have  always  been  actionable  when  calculated  to  subject  the 
party  to  disgrace,  or  even  ridicule  or  contempt,  and  thereby  to  diminish  his 
reputation.  1  B.  &  P.  331.  2  Wils.  404.  1  T.  R.  748.  4  Taun.  355. 
2  B.  &  C.  678.     2  E.  430.     Hard.  470. 

2.  For  slander  by  words  there  is  no  remedy  but  by  action  on  the  case  ; 
but  "  with  regard  to  libels  in  general,  there  are,  as  in  many  other  cases, 
two  remedies;  one  by  indictment,  and  the  other  by  action.  The  former 
for  the  public  offence  ;  for  every  libel  has  a  tendency  to  the  breach  of  the 
peace,  by  provoking  the  person  libelled  to  break  it :  which  offence  is  the 
.same  (in  point  of  law)  whether  the  matter  contained  be  true  or  false  ; 
and  therefore  the  defendant,  on  an  indictment  for  publishing  a  libel,  is  not 
allowed  to  allege  the  truth  of  it  by  way  of  justification.  But  in  the  reme- 
dy by  action  on  the  case,  which  is  to  repair  the />ar/7/  in  damages  for  the  in- 
jury done  him  the  defendant  may,  as  for  words  spoken,  justify  the  truth  of 
the  facts,*   and  shew  that  the  plaintiff  has  received  no  injury  at  all. 

*  A  publication  of  proroodiiics  liefore  a  manislrnle  which  v/cre  inoffi('ir»l  is  nOl  jiislified  by  proof  of 
the  correctnt'usof  (he  siaKMiH-nl  ol  liicnc  pioi^oiMhncs,  if  (he  faclH  tliPicin  .slated  be  iiol  pcoved  and 
be  Khindci'oiisiii  ihcir  chaiacicr.  I{  I'ain.  &,  Crcs.  :'.\.  'I'lieic  are  many  rases  id  wliieli  it  isiiscfiil  to 
Che  ptibhe  and  tiieiclorc  law  lid  to  pi.bhsii  what  opriirs  in  a  court  of  jusiicc.  I5ut  it  ipiiot  jiiftKialde  to 
pubiisii  iIjc  speeches  oi  couiistl  coniaiuiug  f  ;vcre  siriclurcs  without  the  evidence  jjiveu  in  liiecause. 
/'Jem. 


CHAP.  6.J  MALICIOUS  PROSECUTION.  63 

3.  The  clause  of  the  statute  of  limitations  wliich  limits  actions  of  slander- 
to  one  year,  does  not  apply  to  an  action  for  a  libel,  which  may  be  brought, 
therefore,  within  five  years  after  the  publication  of  the  libel.  Chitty's  note» 
See  2  Saun.  63,  b. 

The  original  composition  of  a  libel  is  actionable,  but  not  the  transcribing 
without  publication.  So  without  having  been  the  author  or  original  writer, 
to  publish  it  by  printing,  or  handing  over  to  others,  or  even  by  repeating  or 
singing  it,  are  held  to  be  actionable,  for  they  amount  to  pul)lication.  Wri- 
ting a  libellous  letter  to  the  person  libelled  is  a  publication,  and  actionable. 

Proof  of  the  sale  of  a  libel  in  a  shop,  is  sufiicient  to  convict  the  owner 
of  the  shop  of  publication.     5  Bur.  SGST. 

"  What  was  said  with  regards  to  words  spoken,  will  also  hold  mainly  with 
regard  to  libels  by  writing  or  printing,  and  the  civil  actions  consequent 
thereupon  :  but  as  to  signs  or  pictures,  it  seems  necessary  always  to  shew, 
by  proper  inuendos  and  averments  of  the  defendant's  meaning,  the  import 
and  application  of  the  scandal,  otherwise  it  cannot  appear  that  such  libel 
by  picture  was  understood  to  be  levelled  at  the  plaintiff,  or  that  it  was  at- 
tended with  any  actionable  consequences. 

"  A  third  way  of  destroying  or  injuring  a  man's  reputation  is  by  prefer- 
ring malicious  indictments  or  prosecutions  against  him  ;  which,  under  the 
mask  of  justice  and  public  spirit,  are  sometimes  made  the  engines  of  pri- 
vate spite  and  enmity.  For  this,  however,  the  law  has  given  a  very  adequate 
remedy  in  damages,  either  by  an  action  of  conspiracy,  which  cannot  be 
brought  but  against  two  at  the  least ;  or  which  is  the  more  usual  way,  by  a 
special  action  on  the  case  for  a  false  and  malicious  prosecution." 

There  are  various  distinctions  on  this  subject  to  which  it  is  necessary  to 
advert.  1.  An  indictment  for  a  conspiracy,  lies,  though  nothing  hath  been- 
put  in  execution.  An  action  for  a  conspiracy  only  lies  where  the  party  has 
been  actually  proceeded  against,  and  legiiimo  modo  acquietatus,  that  is,  hy 
verdict.  1  Saund.  230.  2T.  11.231.  Again,  an  action  for  a  conspiracy- 
can  only  be  maintained  against  several,  whereas  an  action  on  the  case  in 
the  nature  of  a  conspiracy  may  be  brought  against  one  person  only,  or  if 
brought  against  several,  and  only  one  is  proved  guilty,  the  plaintiff  may 
have  judgment  against  him.  1  Saun.  230,  a.  So  an  action  for  a  conspira- 
cy lies  only  where  the  conspiracy  was  to  indict  the  party  of  treason  or  fe- 
lony, but  an  action  on  the  case  in  the  nature  of  a  conspiracy  will  lie  for  ma- 
liciously suing  the  plaintiff,  and  maliciously  holding  him  to  bail.  1  Saun. 
228,  229.  And  though  the  words  "per  conspirationem  per  eos  habitam" 
be  used  in  the  declaration,  it  is  not  necessarily  an  action  of  conspiracy,  but 
may  be  merely  an  action  on  the  case  in  the  nature  of  a  conspiracy.  1 
Saun.  230. 

Ah  action  for  a  malicious  prosecution,  which  is  the  most  usual,  partakes 
of  the  character  of  an  action  on  the  case  in  the  nature  of  a  conspiracy.* 
It  does  not  lie,  indeed,  against  a  plaintiff  who  brings  a  civil  suit,  though  he 
proves  to  have  no  sufficient  ground  of  action,  because  every  person  oughtto 
be  permitted  to  assert  his  claims  in  a  court  of  justice,  and  if  he  fails  in  them, 
the  responsibility  for  costs  is  a  sufficient  punishment.  See  1  B.  &  P.  205. 
But  when  he  maliciously  sues,  and  has  no  probable  ground  of  action  what- 
ever; 3  Call,  451.  4  Barn.  &  Cres.  21.  3  Barn.  &  Cres.  139;  or  sues  for 
a  greater  sum  than  is  due,  and  holds  the  party  to  excessive  bail,  he  is  lia- 
ble to  the  action  of  the  party  grieved  ;  2  Esp.  524.  1  Saun.  228;  but  in 
this  case,  it  would  seem  that  excessive  bail  being  required  is  essential  to 
create  the  right  of  action.  Ibid.  So  though  a  debt  be  really  due  to  A,  yet 
if  B  without  authority  maliciously  sues  out  a  writ  against  C,  the  debtor,  he 

*  In  this  action  four  things  must  concur  ;  falsehood  in  the  charge,  want  of  probable  cause,  malice, 
aa.l  damage  to  the  plaintiflf.    GilU.  L.  &.  E.  135.    12  Mod,  SOS,    1 T.  K.  493. 


64  MALICIOUS  PROSECUTION.  BOOK  3.] 

is  liable  to  an  action.  In  these  cases,  however,  of  actions  brought  on  the 
ground  of  a  civil  suit  having  been  improperly  brought,  some  damage  to  the 
party  ought  to  appear,  and  the  former  suit  should  be  determined.  2  Esp. 
627.     "2  T.  R.  2:32. 

The  usual  action  for  malicious  prosecution,  is  for  maliciously  preferring 
indictments,  presentments,  or  informations  against  any  one,  whether  they 
are  of  a  nature  to  injure  his  fame,  to  jeopardize  his  life,  or  put  him  to  ex- 
pense in  defending  himself  or  his  wife.  2  Str.  977.  2  Esp.  520.  Here, 
although  it  must  appear  that  the  prosecution  is  at  an  end,  and  that  the  de- 
fendant is  discharged,  yet  it  is  immaterial  whether  it  be  by  verdict  of  the 
jury,  (2  Str.  1G9J,)  by  defect  in  the  indictment,  (4  T.  R.  218.  5  B.  &  A. 
634,)  or  by  the  grand  jury  not  finding  the  bill  of  indictment.  2  Term 
Rep.  232. 

In  all  cases,  however,  malice  and  want  of  probable  cause  must  be  prov- 
ed. Both  must  concur.  4  Bur.  1974.  1  T.  R.  5 14.  3  Call,  451.  The 
proof,  indeed,  that  there  was  no  probable  cause,  is  of  itself  sufficient  to 
justify  the  implying  of  malice.  But  however  decisive  the  proof  of  malice, 
it  cannot  thence  be  inferred  that  there  was  no  probable  cause.*  The  want 
of  probable  cause  must  therefore  appear.  What  is  probable  cause  has  al- 
ways in  England  been  decided  by  the  court,  and  not  left  to  the  jury.  I  T. 
R.  520.  It  is  there  said  to  be  a  mixed  question,  indeed,  of  law  and  fact ; 
but  that  the  question,  whether  supposing  the  facts  to  be  true,  they  amount 
to  probable  cause,  is  a  question  of  law.  1  T.  R.  520, 534.  2  Bar.  &  C.  693. 
1  Gow.  20.  It  is  uncertain  how  far  these  decisions  are  altered  by  the  case 
of  Crabtrce  vs.  Hester.  4  Mun.  59.  I  incline  to  think  that  it  is  not  intend- 
ed by  that  case  to  deny  the  right  of  the  court  to  pronounce  whether  cer- 
tain facts,  if  satisfactorily  proved,  amount  to  probable  cause,  but  the  deci- 
sion of  the  inferior  tribunal  was  reversed  because  it  had  taken  upon  it  to 
decide  what  weight  should  have  been  given  to  the  evidence,  which  matter 
belongs  to  the  jury. 

The  action  for  malicious  prosecution  is  the  proper  action  for  illegally  su- 
ing out  an  attachment.  6  Mun.  1 18.  And  the  declaration  should  aver  both 
malice  and  want  of  probable  cause.  Gilm.  9.  It  lies  also  for  maliciously 
obtaining  or  executing  a  search  warrant  for  stolen  or  smuggled  goods.  1 
T.  R.  535.  But  it  seems  that  it  does  not  lie  for  a  prosecution  before  a  na- 
val (or  military)  court  martial,  by  a  superior  against  an  inferior  officer,  for  an 
offence  cognizable  by  it.  See  1  T.  11.  550,  where  the  reasons  for  this  opi- 
nion are  given  at  large.  The  judgment  in  this  case  was  affirmed  in  the 
house  of  lords.     1  T,  R.  784. 

0/  the  pleadings.  As  to  the  declaration.  It  should  appear  from  the 
declaration  that  the  prosecution  is  at  an  end.  2  T.  R.  225.  And  it  should 
aver  that  it  was  instituted  w'ahi)Ut  probable  cause.  Neither  the  words  "just 
cause,"  or  "justifiable  cause,"  are  e(iuivalent,  and  still  less  the  allegation 
that  the  prosecution  was  false  and  malicious.  3  Call,  3,  446.  2  Mun.  10. 
But  both  these  defects  are  now  cured  by  a  verdict.  See  1  R.  C.  ch.  128, 
§  103. 

0/  the  plea.  It  is  said  that  the  defendant's  plea  should  show  what 
grounds  of  suspicion  he  had.  2  Esp.  533.  But  according  to  the  practice, 
as  I  have  known  it,  this  is  always  given  in  evidence  on  the  general  issue  of 
not  guilty  ;  for  the  evidence  of  probable  cause  goes  clearly  to  show  that  the 
defcMidatit  is  not  guilty. 

Of  the  evidence.  In  order  to  maintain  his  action,  the  plaintiff  must  first 
prove  a  prosecution  and  acquittal  or  discharge.  1  Bl.  R.  385.  This  can 
only  be  done  by  a  copy  of  the  record  of  the  court  before  which  the  trial  took 
place.  In  case  of  misdemeanor  the  plaintiff  is  entitled  to  demand  a  copy 
as  matter  of  right ;  Ph.  Ev.  321 ;   (it  is  said  indeed  he  need  not  produce  it* 


CHAP.  5.]  '  MALICIOUS  PROSECUTION.  05 

Chitty's  note :)  but  in  cases  of  felony  this  is  not  so.  It  can  only  legally  ht 
had  by  application  to  the  court,  and  it  is  usual  in  England,  as  Mr.  Black- 
stone  says,  to  refuse  it  in  cases  of  felony.  Yet  where  the  plaintiff  obtains 
it  and  produces  it,  it  is  good  evidence,  though  it  has  been  furnished  by  the 
clerk  without  an  order  of  the  court:  for  such  order  is  not  necessary  to  make 
it  evidence.  2Str.  1122.  14  E.  305.  Hence  in  Virginia  the  question  ne- 
ver arises,  as  the  record  is  readily  obtained  from  the  clerk.  The  name  of 
the  defendant  being  endorsed  as  prosecutor  is  sufficient  evidence  to  prove 
him  such.  2  Esp.  535.  The  record  of  a  foreign  court  is  not  indispensa- 
bly necessary  to  prove  a  prosecution  there.     3  Call,  4-16. 

The  burden  of  proof  lies  on  the  plaintiff.  It  is  not  sufficient  for  him  to 
show  a  prosecution  and  acquittal  ;  he  must  show  that  there  was  malice  by 
express  evidence,  or  by  proving  want  of  probable  cause  :  1  T.  R.  455,  518. 
9  E.  361.  1  Camp.  202  :  to  which  end  he  may  give  in  evidence  what  was 
proved  on  the  trial  of  the  indictment.  2  Esp.  535.  It  is  not  sufficient  to 
show  that  the  plaintiff  was  acquitted,  the  prosecutor  not  appearing.  9 
E.  361. 

Failing  to  countermand  a  writ  after  the  debt  was  paid,  in  consequence  of 
which  the  party  was  arrested,  has  been  held  not  sufficient  evidence  of  ma- 
lice.    1  Bos.  &  P.  388.     2  Id.  129,  sed  qusere.* 

If  the  declaration  alleges  that  the  plaintiff  was  lawfully  acquitted,  it  is 
not  supported  by  proof  of  ci  nolle  prosequi;  for  that  is  no  final  acquittal/ 
Yet  where  there  is  only  a  nolle  prosequi,  the  action  may  be  maintained,  if 
the  declaration  states  the  fact  correctly. 

Defendant's  evidence.  He  may  offer  as  evidence  of  probable  cause,  what 
was  sworn  by  himself  or  his  wife  at  the  trial.  He  may  also  prove  what  oth- 
ers swore.  If  the  plaintiff  give  evidence  of  malice,  the  defendant  must 
then  show  probable  cause.  Erroneous  advice  of  counsel  is  no  excuse  for" 
him.t  5  Taun.  277.  2  B.  &  C.  693.  Or  if  the  plaintiff  give  evidence  of 
want  of  probable  cause,  the  defendant  must  then  show  it.  If  he  wishes  the 
court  to  pronounce  whether  there  was  probable  cause  or  not,  he  should 
bring  the  matter  before  it  by  case  agreed,  or  by  moving  the  court  to  instruct- 
the  jury  that  if  the  evidence  introduced  establishes  to  their  satisfaction  such 
and  fmch  facts,  these  facts  will  amount  to  probable  cause.  This  I  under- 
stand to  be  consistent  with  4  Mun.  59,  462. 

A  magistrate's  committing  a  person  accused  for  felony,  or  binding  him  in' 
recognizance  to  answer  the  charge,  is  sufficient  evidence,  if  it  stands  alone, 
of  probable  cause,  although  the  plaintiff  was  afterwards  acquitted,  and  so- 
is  a  conviction  by  an  inferior  court,  though  reversed.  1  Cam.  202.  9  E.  36L 
But  he  may  offer  proof  to  countervail  the  inference  from  this  fact.  4  Mun. 
462. 

The  ?jerf?zcf  of  the  jury,  if  for  the  plaintiff,  is  for  so  much  in  damages,  and 
damage  to  the  person  by  imprisonment,  to  his  reputation  by  tlie  scandal, 
or  to  his  purse  by  his  expenses,  must  appear.  5  Taun,  187.  1  Marsh.  12, 
9  E.  -361.  Hence  it  is  said  by  Mr.  Chitty,  that  since  the  statute,  4  Ja.  I.  c. 
3,  which  gives  costs  to  a  defendant  in  all  actions  in  case  of  a  nonsuit  or 
verdict  against  the  plaintiff,  and  other  statutes  giving  costs  to  defendant  m 
other  stages  of  the  cause,  it  seems  that  no  action  can  be  supported  merely 
in  respect  of  a  civil  suit  maliciously  instituted,  except  in  some  cases  under 
particular  legislative  provisions,  1  Salk.  14,  and  therefore  no  action  is  sus- 
tainable for  a  vexatious  ejectment.     1  B.  &,  P.  205.     To  these  remarks, 

*  See  4  Barn.  &  Cr.  2G.  Tlie  plainliiT  is  bound  to  accept  from  a  defendant,  in  execution,  the  del)t 
and  costri  when  tendered,  and  to  order  his  discliarge.  Tlie  refusal  to  discharge  is  prima  facie  evi- 
dence of  malice. 

_  t  It  has  been  decided  in  a  late  case  lo  be  a  good  defence,  that  the  defendant,  in  arresting;  the  plain-, 
tiff,  acted  bona  fi'de  on  the  advice  of  counsel,  and  from  a  belief  tiiat  he  hml  good  cause  of  action.  2- 
Barn.  &  Crcs.  693. 

VOL   2—9 


66  FALSE  IMPRISONMENIP.  [  book  3. 

however,  the  maliciously  holding  a  party  to  excessive  bail  is  an  obvious  ex- 
ception, since  the  damage  to  the  person  by  imprisonment  in  that  case  is  the 
ground  of  action. 

II.  "We  are  next  to  consider  the  violation  of  the  right  of  personal  liberty. 
This  is  effected  by  the  injury  of  false  imprisonment,  for  which  the  law  has 
not  only  decreed  a  punishment,  as  a  heinous  public  crime,  but  has  also 
given  a  private  reparation  to  the  party  ;  as  well  by  removing  the  actual  con- 
finement for  the  present,  as,  after  it  is  over,  by  subjecting  the  wrongdoer  to 
d  civil  action,  on  account  of  the  damages  sustained  by  the  loss  of  time  and 
liberty. 

"  To  constitute  the  injury  of  false  imprisonment  there  are  two  points  re- 
quisite: 1.  The  detention  of  the  person:  and,  2.  The  unlawfulness  of 
such  detention.  P^very  confinement  of  the  person  is  an  imprisonment, 
whether  it  be  in  a  common  prison,  or  in  a  private  house,  or  in  the  stocks,  or 
even  by  forcibly  detaining  one  in  the  public  streets.  (See  1  Esp.  N.  P. 
Rep.  431.)  Unlawful,  or  false,  imprisonment  consists  in  such  confine- 
ment or  detention  without  sufficient  authority  ;  which  authority  may  arise 
either  from  some  process  from  the  courts  of  justice,  or  from  some  warrant 
from  a  legal  ofliccr  having  power  to  commit,  under  his  hand  and  seal,  and 
expressing  the  cause  of  such  commitment ;  or  from  some  other  special 
cause  warranted,  for  the  necessity  of  the  thing,"  either  by  common  law,  or 
act  of  the  legislature ;  such  as  the  arresting  of  a  felon  by  a  private  person 
without  warrant,  the  seizing  and  confining  a  lunatic  under  the  influence  of 
a  fit  of  madness.  Sec. 

"  False  imprisonment,  also,  may  arise  by  executing  a  lawful  warrant  or' 
process  at  an  unlawful  time,  as  on  a  Sunday  :  for  the  statute  hath  declared, 
that  such  service  or  process  shall  be  void:  [except  in  cases  of  treason,  fe- 
lony, or  breach  of  the  peace,  and  cases  of  escape  warrants.  Ch.  78,  §  19.  j 
This  is  the  injury.  Let  us  next  see  the  remedy  :  which  is  of  two  sorts  ;  the 
one  removing  the  injury,  the  other  making  satisfaction  for  it. 

"The  means  of  removing  the  actual  injury  of  false  imprisonment  are,  by 
sommon  law,  four-fold.  1.  By  writ  o{' mainprize.  2  By  writ  dcodio  et  alia. 
3.  By  writ  de  homine  rcplegiando.     4.  By  writ  of  habeas  corpus. 

1.  "  The  writ  of  mainprize,  manucaptio,  is  a  writ  directed  to  the  sheriff 
(either  generally,  when  any  man  is  imprisoned  for  a  bailable  ofTence,  and 
bail  hath  been  refused  ;  or  specially,  when  the  offence  or  cause  of  commit- 
ment is  not  proj)erly  bailable  below,)  commanding  him  to  take  sureties  for 
the  prisoner's  appearance,  usually  called  mainpernors,  and  to  set  him  at  large. 
Mainpernors  dilfcr  from  bail,  in  that  a  man's  bail  may  imprison  or  surren- 
der him  up  before  the  stipulated  day  of  appearance;  mainpernors  can  do 
neither,  but  are  barely  sureties  for  his  appearance  at  the  day  :  bail  are  only 
sureties,  that  the  party  be  answerable  for  the  special  matter  for  which  they 
stipulate;  mainpernors  are  bound  to  produce  him  to  answer  all  charges 
whatsoever. 

2.  "The  writ  fie  odio  et  alia,  [which  I  presume  is  obsolete  with  us,]  was 
anciently  used  to  be  directed  to  the  sheriff,  commanding  him  to  enquire 
whether  a  prisoner  charged  with  murder  was  committed  upon  just  cause  of 
suspicion,  or  merely  propter  odium  et  aliam,  for  hatred  and  ill-will ;  and  if 
upon  the  iiKiuisitiou  due  cause  of  suspicion  did  not  appear,  then  there  issued 
another  writ  for  the  sheriff  to  admit  him  to  bail. 

3.  "  The  writ  de  homine  replegiando,  [which  is  annulled  by  our  law  1  R. 
C.  ch.  1'20,  §  ].'},]  was  formerly  used,  to  replevy  a  man  out  of  prison,  or  out 
of  the  custody  of  any  i)rivate  person,  (in  the  same  mimner  that  chattels  taken 
in  distress  may  be  replevied,  of  which  in  the  next  chapter,)  upon  giving  se- 
curity to  the  sheriff  that  the  man  shall  be  forthcoming  to  answer  any  charge 
against  him.* 


«HAP.  5.]  HABEAS  CORPUS.  C7 

4.  "  The  writ  of  habeas  corpus,  the  most  celebrated  writ  in  the  English 
law.  Of  this  there  are  various  kinds  made  use  of  by  the  courts  at  West- 
minster, for  removing  prisoners  from  one  court  into  another  for  the  more 
easy  administration  of  justice.  Such  is  the  habeas  corpus  ad  respondendum, 
when  a  man  hath  a  cause  of  action  against  one  who  is  confined  by  the  pro- 
cess of  some  inferior  court;  in  order  to  remove  the  prisoner,  and  charge 
him  with  this  new  action  in  the  court  above.  Such  is  that  ad  satisfaciendum, 
when  a  prisoner  hath  had  judgment  against  him  in  an  action,  and  the  plain- 
tiff is  desirous  to  bring  him  up  to  some  superior  court  to  charge  him  with 
process  of  execution."  But  in  Virginia  the  jails  of  the  county  and  superior 
courts,  and  their  sheriffs  being  the  same,  the  writs  of  habeas  corpus  ad  res- 
pondendum,  and  ad  satisfaciendum,  are  never  used  with  us.  If  the  person 
to  be  sued  is  already  in  jail  on  a  writ  from  an  inferior  court,  a  writ  may  yet 
issue  from  the  superior  court  in  another  case,  and  being  handed  to  the  she- 
riff becomes  instantly  executed,  and  if  he  were  to  discharge  the  defendant, 
it  would  be  an  escape. 

"  There  are  also  at  common  law  writs  of  habeas  corpus  ad  prosequendum 
iestificandum,  deliberandum,  S^c. ;  which  issue  when  it  is  necessary  to  re- 
move a  prisoner,  in  order  to  prosecute  or  bear  testimony  in  any  court,  or  to 
be  tried  in  the  proper  jurisdiction  wherein  the  fact  was  committed."  The 
habeas  corpus  ad  testificandum  is  necessary  where,,  by  the  return  on  a  sub- 
poena, it  appears  it  can  have  no  effect,  as  where  the  witness  is  on  shipboard, 
or  in  military  service  under  the  command  of  an  officer  who  refuses  to  allow 
his  attendance.  This  writ  then  issues  directed  to  him.  But  it  is  said  the 
witness  must  be  willing  to  attend,  and  this  seems  indeed  necessary  where 
he  is  not  a  prisoner,  for  if  at  large  he  cannot  be  brought  up  as  ?i  prisoner  by 
this  writ,  without  his  consent.     Cow.  67*2.     Phil.  12, 

In  Starkie's  Evid.  (part  2,  114,  in  the  note,)  it  is  made  a  quaere  whether 
the  officer  may  require  an  indemnity  against  the  v/itness's  escape,  wiiere  he 
is  in  custody  by  law  process.  I  presume  he  may  ;  for  this  is  but  a  reasona- 
ble condition,  which  the  judge  may  impose  on  the  party  praying  the  writ, 
and  is  even  required  by  our  law  in  the  great  writ  of  habeas  corpus  ad  subjici- 
endum. 

In  the  case  of  the  probate  of  wills,  where  the  witness  is  confined  by  pro- 
cess, the  law  has  made  some  special  provisions  which  render  this  writ  un- 
necessary in  such  cases.     Sess.  acts,   1822,  ch.  27. 

The  application  for  the  writ  must  be  accompanied  by  an  affidavit  of  the 
materiality  of  the  witness  :  Cow.  672.  Peake's  Evid.  192.  2  Stark.  Evid. 
113  :  and  will  be  refused  where  it  appears  to  be  a  mere  contrivance  to  re-- 
move  a  prisoner  in  execution.  3  Bur.  1440. 

Another  species  of  habeas  corpus  known  to  the  common  law,  is  "  the 
common  writ  ad  faciendum  et  recipiendum,  which  issues  when  a  person  is 
sued  in  some  inferior  jurisdiction,  and  is  desirous  to  remove  the  action  into 
the  superior  court ;  commanding  the  inferior  judges  to  produce  the  body  of 
the  defendant,  together  with  the  day  and  cause  of  his  caption  and  detain- 
er, (whence  the  writ  is  frequently  denominated  an  habeas  corpus  cum  cau- 
sa,) to  do  and  receive  whatsoever  the  king's  court  shall  consider  in  that  be- 
half. This  is  a  writ  grantable  of  common  right,  without  any  motion  in 
court,  2  Mod.  306,  and  it  instantly  supersedes  all  proceedings  in  the  court 
below."  ^      ^  V  a 

By  our  statute,  1  R.  C.  ch.  69,§43,  it  is  provided,  that  the  superior  courts 
of  law  may  issue  writs  of  habeas  corpus  of  this  description,  and  that  where 
any  person  shall  be  committed  in  any  civil  action  to  the  jail  of  any  county 
or  corporation,  for  any  cause  or  matter  cognizable  in  the  superior  courts, 
the  clerk  of  the  superior  court  of  the  county  wherein  such  commitment 
shall  be,  shall,  upon  the  application  of  such  person,  and  a  certificate  of  his 


68  HABEAS  CORPUS.  [  BOOK  3. 

£)x  her  being  actually  in  jail,  issue  a  writ  of  habeas  corpus  cum  causa,  to  re- 
move the  body  of  such  prisoner  into  the  circuit  court  jail,  and  the  cause  of 
his  commitment  into  such  court,  returnable  on  the  tirst  day  of  the  succeed- 
ing court,  if  issued  in  vacation,  or  on  the  last  of  the  term,  if  sued  out 
whilst  the  court  is  sitting. 

The  habeas  corpus  ad  faciendum  et  recipiendum,  cannot  be  granted  after  is- 
sue or  demurrer  joined.  When  removed,  the  cause  is  now  directed  to  stand 
in  the  superior  court  in  the  same  situation  as  it  did  in  the  inferior  court,  so 
that  little  delay  is  now  produced  by  it.  Hence,  though  at  one  time  it  was 
a  good  deal  used  for  that  purpose,  we  now  seldom  hear  of  it.  See  1  R.  C. 
ch.  69,  §  43,  44. 

"  But  the  great  and  efficacious  writ,  in  all  manner  of  illegal  confinement, 
is  that  of  habeas  corpus  ad  subjiciendum,  [passed  in  the  thirty-first  year  of 
Charles  II.]  directed  to  the  person  detaining  another,  and  commanding 
J^iim  to  produce  the  body  of  the  prisoner,  with  the  day  and  cause  of  his 
caption  and  detention,  ad  faciendum,  subjiciendum,  et  recipiendum,  to  do, 
submit  to,  and  receive  whatsoever  the  judge  or  court  awarding  such  writ 
shall  consider  in  that  behalf.  This  is  a  high  prerogative  writ,  and  therefore  by 
the  common  law  issuing  out  of  the  court  of  king's  bench  not  only  in  term- 
time,  but  also  during  the  vacation,  by  a  jiat  from  the  chief  justice  or  any 
other  of  the  judges,  and  running  into  all  parts  of  the  king's  dominions  :  for 
the  king  is  at  all  times  entitled  to  have  an  account,  why  the  liberty  of  any 
of  his  subjects  is  restrained,  wherever  that  restraint  may  be  inflicted.  If  it 
issues  in  vacation,  it  is  usually  returnable  before  the  judge  himself  who 
awarded  it,  and  he  proceeds  by  himself  thereon ;  unless  the  term  shall  in- 
tervene, and  then  it  may  be  returned  in  court." 

Without  detaining  the  student  here  with  the  particular  provisions  of  the 
English  statute,  which  have  been  very  materially  departed  from  by  ours, 
but  recommending  to  him,  earnestly,  Mr.  Blackstone's  remarks  upon  the 
subject,  together  with  Mr.  Chitty's  abstract  of  the  adjudications  in  England, 
I  shall  pass  at  once  to  the  subject  of  our  own  act  of  assembly,  which  has 
rendered  this  writ,  and  the  proceedings  under  it,  much  more  definite  and 
efficient  than  they  were  formerly. 

By  that  act,  I  11.  C.  ch.  120,  it  is  enacted, 

Sec.  1.  That  whenever  any  person  detained  in  custody,  whether  charged 
with  a  criminal  offence  or  not,  shall,  by  himself,  or  by  some  other  person  in 
his  behalf,  apjjly  to  the  general  court,  or  any  superior  court  of  law,  or  su- 
perior court  of  cliancery,  in  this  commonwealth,  or  to  any  judge  thereof, 
in  vacation,  for  a  writ  of  habeas  corpus  ad  subjiciendum,  and  shall  shew,  by 
affidavit  or  other  evidence,  probable  cause  to  believe  that  he  is  detained  ia 
custody  without  lawful  authority,  it  shall  be  the  duty  of  the  court  or  judge 
to  whom  such  aj)plication  shall  be  made,  forthwith  to  grant  the  writ,  signed 
by  himself,  directed  to  the  person  in  whose  custody  the  applicant  is  detain- 
ed, and  returnable,  immediately,  before  such  court  or  judge,  or  any  of  the 
said  courts  or  judges  :  Provided,  That  in  all  cases  where  it  shall  appear 
necessary,  the  court  or  judge,  granting  the  writ,  shall  previously  require 
bond  with  sufficient  security,  executed  in  such  manner,  and  in  such  reason- 
able penalty,  as  such  court  or  judge  shall  prescribe,  conditioned  for  the 
payment  of  such  charges  as  may  be  awarded  against  the  prisoner,  and  that 
he  will  not  escape  by  the  way.  Every  bond  so  executed  shall  be  recorded 
with  the  other  proceedings,  as  herein-after  provided  for,  and  may  be  sued 
on,  in  the  name  of  the  person  to  whom  it  is  made  payable,  fur  the  benefit 
of  any  person  really  infercsted  therein. 

Sec.  2.  Whenever  any  such  writ  shall  be  served  on  the  officer  or  other 
person  to  whom  it  is  directed,  or,  in  his  absence  from  the  place  where  the 
prisoner  \^^nrtncd,   oij  the  perton  having  the  immediate  custody  of  the 


c 


£HAP.  5.]  HABEAS  CORPUS.  G5 

prisoner,  it  shall  be  the  duty  of  hira  on  whom  the  writ  shall  be  so  executed, 
without  delay,  to  bring  the  body  of  the  prisoner,  or  cause  it  to  be  brought, 
before  the  court  or  judge  before  whom  the  writ  is  .made  returnable,  or,  in 
case  of  the  absence  of  such  court  or  judge,  before  any  of  them  ;  and,  at 
the  same  time,  to  certify  the  cause  of  the  detainer  of  such  prisoner. 

Sec.  5.  The  court  or  judge  before  whom  the  prisoner  shall  be  brought, 
shall,  without  delay,  proceed  to  enquire  into  the  cause  of  his  imprisonment, 
and  shall  either  discharge  him,  adujit  him  to  bail,  or  remand  him  into  cus- 
tody,,as  the  law  and  the  evidence  shall  require  ;  and  shall,  moreover,  either 
award  against  the  prisoner  the  charges  of  his  transportation,  not  exceeding 
seventeen  cents  per  mile,  and  the  costs  of  the  proceedings,  or  shall  award 
costs  in  his  favor,  or  shall  award  no  costs  or  charges  against  either  party, 
as  shall  seem  right.  The  clerk  of  the  court,  in  the  office  of  which  the  pro^ 
ceedings  shall  be  recorded,  may  issue  execution  for  the  costs  and  charges, 
so  awarded  by  a  judgment  rendered  in  vacation,  in  the  same  manner  as  ii" 
the  judgment  had  been  rendered  in  term  time. 

Here  observe, 

1.  The  English  statute  allowed  the  writ  to  persons  "  detained  for  any 
crime,  unless  for  treason  or  felony  plainly  expressed  in  the  warrant  of  com- 
niitment,  or  convict,  or  in  execution  by  legal  process."     This  act  extends 

To  all  persons  in  custody  whether  charged  with  a  criminal  offence  or  not. 
It  makes  no  exception  as  to  treason,  felony,  or  conviction :  yet  as  the 
iifth  section  directs  that  the  court  shall  enquire  into  the  cause  of  the  impri- 
sonment, and  either  discharge  the  prisoner,  admit  him  to  bail,  or  remand 
him  to  custody,  the  court  or  judge  will,  in  case  the  party  is  convict,  remand 
him  ;  and  if  he  is  in  custody  on  a  charge  of  treason  or  felony  or  other  of- 
fence, will  either  remand  him  or  bail  him,  according  to  the  circumstances. 
And  as  the  first  section  requires  probable  cause  of  unlawful  detainer,  I  pre- 
sume the  writ  ought  not  to  be  awarded  where  it  appears  that  the  party  is 
convicted  or  charged  with  an  offence  not  bailable.  That  the  court  will  not 
call  in  question  a  conviction  by  a  competent  jurisdiction,  was  decided  by 
myself  in  Fredericksburg,  1825;  an  opinion,  sustained,  I  think,  by  princi- 
ple and  authority.  See  i2  John.  C.  IDS.  1  East,  306.  5  Dow.  199.  7 
E.  37(3. 

2.  The  English  statute  requires  the  petition  to  be  attested  and  subscribed 
by  two  witnesses  who  were  present  at  the  delivery. 

Our  statute  enacts  that  the  prisoner  himself,  or  any  person  fur  him,  may 
make  an  application  by  petition  in  writing,  to  be  supported  by  affidavit  or 
other  evidence  ;  and  the  afliJavit  of  the  party  himself  is  in  this  incipient 
stage  suflicient. 

3.  By  our  law  it  is  provided  th^t  the  petition  must  shew  probable  cause 
to  believe  that  the  party  is  detained  in  custody  without  lawful  authority. 
This  clause  is  not  in  the  English  statute.  And,  indeed,  by  collating  the 
1st  and  5th  clauses,  I  apprehend  that  whatever  be  the  authority,  if  the  war- 
rent  shows  clearly  no  legal  ground  of  imprisonment,  or  if  the  case  is  baila- 
ble, the  prisoner  is  entitled  to  sue  out  his  habeas  corpus,  and  will,  after  a 
hearing,  be  discharged  or  bailed  as  the  case  may  be  ;  for  his  case  would,  I 
conceive,  be  within  the  meaning  of  the  act,  if  he  were  either  detained  in 
custody,  even  by  a  warrant,  if  it  obviously  shewed  no  criminal  charge,  or 
after  tendering  bail  in  a  bailable  case,  where  the  officer  could  not,  or  would 
not,  take  it. 

Sec,  G.  The  return  made  to  such  writ  shall  not  hereafter  be  taken  to  be 
conclusive  as  to  the  facts  stated  therein ;  but  it  shall  be  competent  for  the 
judge  or  court,  before  whom  such  return  is  made,  to  receive  evidence  in 
contradiction  thereof,  and  to  determine  the  same,  as  the  very  truth  of  the 
case  shall  require. 


70  FALSE  IMPRISONMENT.  [  book  3. 

If  the  return  is  evasive  the  party  may  be  attached  ;  though  he  usually 
amends.  5  T.  R.  89.  See  also  1  East,  30G,  as  to  the  return  upon  this 
writ.  It  should  state  distinctly  for  what  cause  the  party  is  in  custody,  and, 
negatively,  "  that  he  is  detained  for  no  other  cause.'"' 

To  ensure  obedience  to  the  writ  of  habeas  corpus,  it  is  provided  further 
by  the  act,  that  on  failure  by  the  person  to  whom  the  writ  is  directed  to  re- 
turn the  writ,  with  the  cause  of  detainer,  or  to  bring  up  the  body  for  three 
days  after  service,  or  (when  the  prisoner  is  to  be  brought  more  than  twenty 
miles)  for  so  many  days  more  as  will  be  equal  to  one  day  for  every  twenty 
miles,  he  shall  forfeit  to  the  prisoner  $300,  and  the  suit  shall  not  abate  by 
death.  Moreover,  a  judge  in  vacation  is  invested  with  the  powers  of  a 
court  in  enforcing  obedience  ;  i.  e.  by  rule,  followed  up  by  attachment. 
Bac.  Hab.  Cor.  B.  8.  So  he  may  compel  the  attendance  of  witnesses, 
though  (if  it  be  inconvenient  to  procure  the  attendance  of  any  witness)  his 
affidavit  taken  w'ith  due  notice  may  be  received  in  evidence. 

"NVhen  the  proceedings  take  place  in  vacation,  they  are  to  be  certified  by 
the  judge  to  the  clerk  of  his  court,  and  there  recorded.  The  material  facts 
must  also  be  certified  if  required.  The  judgment  is  conclusive,  both  in 
favor  and  against  the  petitioner,  unless  there  be  a  writ  of  error  which  either 
party  may  obtain  from  the  court  of  appeals.  Such  appeals  are  privileged, 
and  the  governor  may,  in  certain  cases,  (see  sec.  11,)  even  convene  the 
court  during  a  recess  to  try  them. 

It  is  moreover  provided,  that  a  citizen  imprisoned  for  any  criminal  matter, 
shall  not  be  removed  from  the  custody  of  one  officer  to  that  of  another,  but 
by  habeas  corpus  or  some  other  legal  writ,  except  in  certain  specified  cases. 
IR.  C.  ch.  1-20,  §  14. 

Besides  the  efficacy  of  the  writ  of  habeas  corpus  in  liberating  the  subject 
from  illegal  confinement  in  a  public  prison,  it  also  extends  its  influence  to 
remove  every  unjust  restraint  of  personal  freedom  in  private  life,  though  im- 
posed by  a  husband  or  a  father;  but  when  women  or  infants  are  brought 
before  the  court  by  an  habeas  corpus,  the  court  will  only  set  them  free  from 
an  unmerited  or  unreasonable  confinement,  and  will  not  determine  the  va- 
lidity of  a  marriage,  or  the  right  to  the  guardianship,  but  will  leave  them  at 
liberty  to  choose  where  they  will  go  :  and  if  there  be  any  reason  to  appre- 
hend that  they  will  be  seized  in  returning  from  court,  they  will  be  sent 
home  under  the  protection  of  an  officer.  But  if  a  child  is  too  young  to 
have  any  discretion  of  its  own,  then  the  court  will  deliver  it  into  the  custo- 
dy of  its  parent,  or  the  person  who  appears  to  be  its  legal  guardian.  See 
3  Bur.  1434,  where  all  the  prior  cases  are  considered  by  Lord  Mansfield. 
In  a  late  case,  (Moore  &,  Fitzgibbon,)  the  court  refused  to  permit  an  enqui- 
ry whether  a  child  born  during  wedlock  was  the  offspring  of  the  former  or 
the  latter,  but  on  a  writ  of  habeas  corpus,  directed  that  the  child,  an  infant 
tinder  three  years  of  age,  should  be  restored  to  the  former,  who  was  the 
liusband  of  the  child's  mother.     M.  T.  IS"25,  K.  B.      Christian. 

"  The  satisfactory  remedy  for  the  injury  of  false  imprisonment,  is  by  an 
action  of  trespass  vi  et  armis,  usually  called  an  action  of  false  imprison- 
ment; which  is  generally,  and  almost  unavoidably,  accompanied  with  a 
charge  of  assault  and  battery  also:  and  therein  the  party  shall  recover  da- 
mages for  the  injury  he  has  received  ;  and  also  the  defendant  is,  as  for  all 
other  injuries  committed  by  force,  or  vi  et  armis,  liable  to  pay  a  fine  to  the 
king  for  the  violation  of  the  ])ublic  peace." 

As  most  instances  of  false  imprisonment  arise  not  out  of  wanton  vio- 
lence, but  und(?r  pretext  of  the  process  of  courts  or  authority  of  law,  it  is 
proper  to  consider  when  such  arrests  or  detentions  are  illegal,  and  when 
they  arc  justifiable  or  excusable. 


CriAP.  5.]  fALSE  IMPRISONMENT.  71 

Where  from  the  nature  of  the  subject  the  person  is  not  liable  to  arrests  at 
all,  the  arrest  will  subject  the  plaintiff'  who  directs  it,  to  the  action  of  false 
imprisonment:  as  where  bail  is  required  in  an  action  against  an  executor, 
not  suggesting  a  devastavit,  for  no  executor  whatever  is  liable  to  arrest  in 
such  a  case,  and  the  writ  is  therefore  against  law  and  void.  But  where 
the  arrest  would  in  general  be  legal,  but  the  person  arrested  claims  an 
exemption  by  reason  of  some  privilege  which  takes  his  case  out  of  the 
general  rule,  this  action  does  not  lie.  Such  is  the  case  of  peers  in  Eng- 
land, and  witnesses  and  others  in  Virginia,  who  are  privileged,  for  the 
time  being,  from  arrest.  These,  though  arrested,  cannot  maintain  any  ac- 
tion against  the  arresting  officer,  who  is  bound  to  execute  the  writ,  nor  can 
they  maintain  this  action  even  against  the  plaintiff".  2  Bl.  R.  1190.  Doug. 
646.  3  H.  &  M.  260.  If,  indeed,  the  plainti-fF  (or  perhaps  even  the  offi- 
cer) knowing  of  the  privilege,  wantonly  sets  it  at  nought  and  directs  the 
arrest,  he  might  probably  be  liable  to  an  action  on  the  case.  Doug.  646, 
&c.  But  as  the  writ  is  not  void,  it  carries  with  it  the  authority  of  the  law, 
and  upon  general  principles  cannot,  for  that  reason,  work  a  trespass  vi  et 
armis.  3  T.  R.  183.  It  is  otherwise  where  the  writ  is  void,  as  we  shall 
presently  see. 

Where  an  officer  executes  process  on  the  wrong  person,  he  is  liable  in 
this  action  ;  for  a  writ  against  A  furnishes  no  justification  for  imprisoning 
B.  See  8  E.  3"28.*  In  like  manner,  although  the  law  authorizes  any  pri- 
vate person  to  arrest  a  felon,  even  without  warrant,  yet  if  upon  examina- 
tion the  person  suspected  turns  out  to  be  no  felon,  he  who  arrests  him  is  li- 
able to  this  action.  6  T.  R.  315.  It  is  otherwise,  however,  as  to  a  peace 
officer,  for  it  is  his  duty  to  arrest,  and  if  the  circumstances  of  suspicion 
are  strong,  he  is  justified,  though  the  party  may  prove  to  be  innocent. 
Doug.  345. 

In  all  these  cases,  however,  an  actual  arrest  is  necessary;  for  if  the  par- 
ty attend  the  officer  upon  the  warrant  before  the  justice  without  an  actual 
arrest,  this  action  does  not  lie,  (2  Bos.  &  Pul.  211.  1  Esp.  Rep.  431. 
Chitty's  note,)  though  an  action  on  the   case  may. 

With  respect  to  process.  Where  process  is  irregular  and  void,  or  where 
it  is  irregular  though  not  void,  but  is  afterwards  quashed  or  set  aside  for  ir- 
regularity, the  plaintiff"  in  the  suit  is  liable  to  this  action  ;  but  the  officer  is 
not,  for  he  is  not  to  exercise  his  judgment  as  to  the  validity  of  process.  3 
Wils.  345.     1  Str.  509.     See  3  H.  &  M.  260. 

Where  a  person  is  arrested  by  process  out  of  an  inferior  court  having  no' 
jurisdiction  of  the  matter,  and  that  appears  on  the  face  of  the  process,  it 
furnishes  no  justification  to  any  one,  and  the  plaintiff"  and  officer  are  both 
liable  in  this  action. t  And  where  a  court  of  limited  jurisdiction  does  not 
pursue  the  provisions  of  the  law  which  gives  it,  the  plaintiff"  is  liable  to  a 
party  arrested  under  such  irregular  proceeding. 

Though  the  original  arrest  be  lawful,  yet  may  the  officer  or  person  ar- 
resting be  liable  to  this  action  where  he  wrongfully  continues  the  imprison- 
ment.t  As  when,  after  the  plaintiff"  directed  the  defendant  to  be  released, 
the  sheriff"  still  held  him  in  custody.     I  Esp.  333.     And  in  the  case  of  Wall 

*  The  circumstance  of  an  irnpriFonment  being  committeH  under  a  mistake  constitutes  no  excuse,- 
3  Wils  3(;9.  And  it  has  ijeen  decided,  iIuU  if  A  tell  an  officer  who  has  a  warrant  against  B,  that 
his(A's)  name  isB,  and  thereupon  the  officer  arrests  A,  it  is  lalse  imiirisonnient,  JMoore,  457.  Hard. 
3i3;  but  see  3  Camp.  108  ;  and  this  doctrine  was  overruled  in  a  late  case  on  the  western  circuit,  on 
the  principle  volenti  non  fit  injuria,  and  that  such  a  fraud  upon  legal  proceedings  cannot  give  a  right 
of  action.  Chilly- 

t  As  to  justification  under  an  arrest  by  (he  officer  of  the  House  of  Representativps  on  a  warrant 
of  the  Speaker,  see  the  case  of  Anderson  vs.  Dunn,  in  Wlieaton's  Reports.  See,  also,  Burdiie  vs. 
Abbott,  14  E.  1. 

\  A  plaintiff  who  upon  lender  »f  the  debt  and  costs  refufes  to  direct  the  defendant's  discharge,  isli- 
abk  in  case.    4  Barn.  &  Cres.  26. 


f^  CRIM.  CON.  [  BOOK  3. 

vs.  M'Nainaia,  cited  1  T.  R.  530,  it  was  decided  tliat  thougli  an  arrest  by 
a  military  oiBcer  be  legal,  yet  lie  may  render  himself  liable  in  this  action  if 
he  is  guilty  of  oppression  and  cruelty. 

No  action  lies  against  a  judge  of  a  court  of  record  for  any  act  done  by 
him  in  execution  of  his  office,  nor  for  any  mistake  of  judgment.  Salk.  396: 
Nor  arc  justices  of  the  peace  liable  for  their  judicial  acts,  unless  they  pro- 
ceed in  a  case  coram  non  judice.     C  John.   Rep.  28. 

Where  this  action  is  brought  against  the  plaintiff  and  the  officer  jointly, 
they  may  sever  in  their  defence,  for  otherwise  the  officer  will  not  be  able 
to  justify  himself  by  the  writ  if  it  be  irregular :  since  an  irregular  writ  is  no 
justification  fo  the  plaintifi",  and  unless  a  joint  plea  is  good  as  to  both,  it  is  bad 
in  the  whole.  1  Esp.  336.  Where  the  defendant  justifies  under  the  au- 
thority of  a  court  of  limited  jurisdiction,  he  must  shew  that  the  case  was 
Avithin  it,  and  when  he  justifies  under  an  authority  to  imprison,  it  must  ap- 
pear to  have  been  strictly  pursued.  The  statute  of  limitations  is  also  a  good 
plea  in  this  action. 

The  verdict,  if  for  the  plaintiflf  in  this  action,  is  in  damages,  and  the  costs 
are  governed  by  the  same  law  which  applies  to  actions  of  assault  and 
battery. 

"  Wc  are  next  to  contemplate  those  injuries  which  affect  relative  riglits, 
or  such  as  are  incident  to  persons  considered  as  members  of  society,  and 
connected  to  each  other  by  various  lies  and  relations  ;  and,  in  particular, 
such  injuries  as  may  be  done  to  persons  under  the  four  following  relations : 
husband  and  wife,  parent  and  child,  guardian  and  ward,  master  and  ser- 
vant. 

1.  "Injuries  that  may  be  offered  to  a  person,  considered  ns  ^  husband, 
are  principally  three  :  abduction,  or  taking  away  a  man's  wife  ;  adulte- 
ry, or  criminal  conversation  with  her ;  and  beating  or  otherwise  abusing 
her.  I.  As  to  the  first  sort,  abduction,  or  taking  her  away,  this  may  either 
be  by  fraud  and  persuasion,  or  open  violence;  though  the  law  in  both  ca- 
ses supposes  force  and  constraint,  the  wife  having  no  power  to  consent ;  and 
therefore  gives  a  remedy  by  writ  of  ravishmerit,  or  action  oi  trespass  vi  et  ar- 
mis,  de  uxore  rapta  et  abducta.  This  action  lay  at  the  common  law  ;  and 
thereby  the  husband  shall  recover,  not  the  possession  of  his  wife,  but  dam- 
ages for  taking  her  away. 

2.  "  Adidlery,  or  criminal  conversation  with  a  man's  wife,  though  it  is,  as 
a  public  crime,  left  by  our  laws  to  the  coercion  of  the  spiritual  courts  ;  yet, 
considered  as  a  civil  injury,  (and  surely  there  can  be  no  greater,)  the  law 
gives  a  satisfaction  to  the  husband  for  it  by  action  of  trespass  vi  et  amis, 
against  the  adulterer,  wherein  the  damages  recovered  are  usually  very  large 
and  exemplary.  But  these  are  properly  increased  or  diminished  by  cir- 
cumstances ;  as  the  rank  and  fortune  of  the  plaintifl'  and  defendant ;  the 
relation  or  connexion  between  them  ;  the  seduction  or  otherwise  of  the 
wife,  founded  on  her  previous  behaviour  and  character  ;  and  the  husband's 
obligation  by  settlement  or  otherwise  to  provide  for  those  children,  which' 
he  cannot  but  suspect  to  be  spurious.  In  this  case,  and  upon  indictments 
for  polygamy,  a  marriage  in  fact  must  be  proved  ;  though  generally,  in 
other  cases,  reputation  and  cohabitation  are  sufficient  evidence  of  mar- 
riage." 

The  action  in  tliis  case  is  trespass  vi  et  arinis,  and  the  declaration  char- 
ges an  assault  upon  the  wife,  &c.  See  6  E.  387.  Selw.  N.  P.  18.  2  Wils. 
85.     Bull.  N.  P.  28. 

The  plaintiff,  to  maintain  his  case,  must  prove  a  marriage  in  fact,  either 
by  the  register  of  marriage,  or  by  some  person  present  at  the  ceremony.  4 
Bur.  2057.  Bull.  27.  To  enhance  the  damages  he  may  give  evidence  of 
the  domestic  happiness  existing  between  himself  and  wife  ;  of  the  defcn- 


CHAP.  5.]  SEDUCTION.  73 

dant's  being  his  friend,  and  betraying  that  friendship;  and  of  the  wife's  gen- 
eral good  character,  &.c.  In  general  the  court  will  not  grant  a  new  trial  to 
the  defendant  on  account  of  excessive  damages — in  so  heinous  a  light  is 
the  offence  viewed  by  the  law.  Sec  4  T.  R.  651.  Yet  the  damages  are  not  to 
be  looked  on  as  a  punishment,  but  merely  in  the  light  of  compensation  for 
injury.     5  T.  R.  360. 

The  defendant  on  his  part  may  plead  not  guilty,  and  may  give  many  mat- 
ters in  mitigation  ;  such  as  the  plaintiff's  conniving  at  his  intercourse  with 
the  wife,  or  her  criminality  with  others,  or  her  elopement  on  a  former  occa- 
sion, or  her  having  had  a  bastard  before  marriage,  or  the  husband's  turning 
her  away,  or  his  neglecting  her  society  and  openly  living  in  adultery  with 
other  women.  Indeed,  it  has  been  decided  that  the  husband's  permitting 
his  wife  to  live  as  a  prostitute,  does  not  go  in  mitigation  only,  but  is  a  com- 
plete bar  to  the  action  :  and  so,  also,  where  the  parties  lived  separate  and  a- 
part,  it  was  determined  that  the  action  did  not  lie.  5  T.  R.  357.  For  it  is 
said  that  the  ground  of  this  action  is  the  depriving  the  husband  of  the  soci- 
ety and  comfort  of  his  wife's  company,  and  that  this  cannot  exist  where 
they  are  parted.  This  dicision,  however,  seems  to  be  questioned.  6 
E.  214. 

On  the  subject  of  this  action,  see  Starkie's  Ev.  2  vol.  440.  Also  Chitty's 
notes  on  this  subject.  As  to  the  plea  of  the  statute  of  limitations  and  costs 
in  this  case,  see  5  T.  R.  361.     3  Wood.  246.     2  Bur.  753. 

•'The  third  injury  is  that  of  beating  a  man's  wife,  or  otherwise  ill-using 
her  ;  for  which,  if  it  be  a  common  assualt,  battery,  or  imprisonment,  the  law 
gives  the  usual  remedy  to  recover  damages  by  action  of  trespass  vi  et  at' 
mis,  which  must  be  brought  in  the  names  of  the  husband  and  wile  jointly  :  but 
if  the  beating  or  other  mal-treatment  be  very  enormous,  so  that  thereby 
the  husband  is  deprived  for  any  time  of  the  company  and  assistance  of  his 
wife,  the  law  then  gives  him  a  separate  remedy  by  an  action  of  trespass,  in 
nature  of  an  action  upon  the  case,  for  this  ill-usage,  per  quod  consortium, 
amisit ;  in  which  he  shall  recover  a  satisfaction  in  damages. 

II.  "  Injuries  that  may  be  offered  to  a  person  considered  in  the  relation 
of  a.  parent,  were  likewise  of  two  kinds :  1.  Abduction,  ovtpAiing  his  children 
away."  It  has  indeed  been  disputed,  but  the  better  opinion  is,  that  the  fa- 
ther has  an  interest  in  his  legitimate  child,  sufficient  to  enable  him  to  sup- 
port an  action  in  that  character,  for  taking  the  cliild  away  ;  he  being  enti- 
tled to  the  custody  of  it.  Cro.  Eliz.  770.  23  Vin.  451.  2  P.  W.  116. 
3  Co.  .38.  5  East,  221.  No  modern  instance,  however,  of  such  action 
can  be  adduced,  and  it  is  now  usual  for  the  father  to  bring  his  action  for 
any  injury  done  to  his  child,  as  for  debauching  her,  or  beating  him  or  her, 
in  the  character  of  master,  per  quod  sermtium  amisit,  in  which  case  some 
evidence  must  be  adduced  of  service.     5  T.  R.  300,  1. 

The  action  by  a  father  for  the  seduction  of  his  daughter,  may  be  either 
trespass  or  case.  Where  there  has  been  an  illegal'entry  on  his  premises, 
(2  T.  R.  167,)  and  the  father  brings  trespass  for  breaking  and  entering  his 
house,  he  may  give  the  seduction  in  evidence  in  aggravation.  But  he  can- 
not maintain  an  action  for  seduction  of  his  daughter  if  she  be  more  than 
twenty-one  years  old,  unless  she  lives  with  him,  for  the  declaration  always 
charges  per  quod  servitium  amisit ;  yet  though  she  be  twenty-one  years  of 
age  the  action  lies  if  she  does  live  with  him.  See  5  E.  45,  47.  And  the 
slightest  evidence  of  service  is  sufficient.  2T.  R.  168.  2  N.  R.  476.  6 
E.  387.  HE.  23.  And  it  is  unnecessary  to  prove  any  contract  of  service. 
Peake's  Rep.  253.  But  if  the  seduction  takes  place  while  she  is  residing 
elsewhere,  and  she  in  consequence  returns  to  her  father,  he  cannot  maintain 
the  action,  5  East,  45,  unless  she  be  absent  with  his  consent,  and  with  the 
intention  of  returning,  although  she  be  of  age,  ib.  47,  n.;  or  if  the  dcfend- 
voL.  2—10 


74  RETAINING  A  HIRED  SERVANT.  [book  3. 

aiil  engaged  her  as  his  servant,  and  induced  her  to  live  in  Iiis  house  as  such, 
with  intent  to  seduce  lier.  2  Stnrkie  Rep.  493.  If  she  live  in  another  fam- 
ily, the  person  with  whom  she  resides  may  maintain  the  action,  11  East, 
21.  5  East,  45.  2  T.  R.  4,  and  the  jury  are  not  limited  in  their  verdict 
to  the  mere  loss  of  service.  11  East,  24.*  This  action,  indeed,  seems  to 
have  been  the  creature  of  ihe  courts,  and  is  moulded  by  them  so  as  to  af- 
ford the  parent  a  remedy  for  the  greatest  injury  that  can  be  done  him  in  the 
person  of  his  child,  but  for  which  the  common  law  afforded  no  specific  re- 
medy. In  these  cases  new  trials  are  very  reluctantly  given  on  account  of 
excessive  damages.     2  T.  R.  168. 

An  action  also  lies  for  the  father  for  a  battery  of  his  child  ;  but  like  the 
action  for  seduction,  it  cannot  be  maintained  except  upon  the  ground  of 
loss  of  service,  though  the  slightest  evidence  of  service  will  suffice.  But 
if  it  appear  that  the  child  is  of  such  tender  years  as  to  be  incapable  of  do- 
ing any  service  whatever,  then  the  father  cannot  sustain  the  action  at  all, 
even  for  an  enormous  injury  to  the  child  ;  10  C.  Law  Rep.  436 ;  unless 
perhaps  for  expenses  necessarily  and  unavoidably  incurred  in  curing  him. 
Sec  Sir  T.  Ray.  259.  Chitty's  note  of  the  case  of  Hale  vs.  Hokander. 
The  child,  however,  himself,  it  must  be  remembered,  may  sue  by  his  next 
friend,  and  recover  damages  for  the  injury  he  has  sustained. 

3.  Of  a  similar  nature  to  that  of  parent  and  child  is  the  relation  of  guar- 
dian and  ward.  And  it  is  expressly  provided  by  statute,  1  R.  C.  ch.  108, 
§  1,  that  guardians  shall  have  power,  by  writ  of  ravishment  of  ward,  or  tres- 
pass to  recover  the  ward,  wiih  damages  for  the  taking  away  and  detentioa 
of  him,  which  damages  will  be  for  the  child's  use. 

IV.  "  To  the  relation  betv/een  master  and  servant,  and  the  rights  accru- 
ing therefrom,  there  are  two  species  of  injuries  incident.  The  one  is,  re- 
taining a  man's  hired  servant  before  his  time  is  expired  ;  the  other  is  beating 
or  confining  him  in  such  a  manner  that  he  is  not  able  to  perform  his  work. 
As  to  the  first,  the  retaining  another  person's  servant  during  the  time  he  has 
agreed  to  serve  his  present  master;  this,  as  it  is  an  ungentlemanlike,  so  it 
is  also  an  illegal  act.  For  every  master  has  by  his  contract  purchased  for  a 
valuable  consideration  the  service  of  his  domestics  for  a  limited  time  ;  the 
inveigling  or  hiring  his  servant,  which  induces  a  breach  of  this  contract,  is 
therefore  an  injury  to  the  master;  and  for  that  injury  the  law  has  given  him 
a  remedy  by  a  special  action  on  the  case  ;  and  he  may  also  have  an  action 
against  the  servant  for  the  non-performance  of  his  agreement."  See  2 
Saun.  169. 

In  the  action  against  the  hirer  it  is  essential  that  the  defendant  should 
have  hired  or  retained  the  plaintiff's  servant,  roiih  notice  of  the  plaintiff's 
right,  or  that  after  notice  he  has  continued  to  keep  him  in  his  service.  2 
Lev.  68.  6  T.  R.  221.  A  journeyman  in  any  trade,  who  has  engaged  for 
a  given  time  with  a  master  tradesman,  is  a  servant  quoad  hoc,  and  an  action 
lies  for  enticing  him  away.     Cow.  54. 

With  respect  to  slaves  the  law  is  deemed  to  be  somewhat  difierent,  for  it 
is  not  necessary,  I  conceive,  to  prove  notice,  in  order  to  maintain  an  action 

•In  tills  action  thed:iu?iitpr  is  a  competont  wltnosp,  2  Strn.  IOC  I,  and  iliougli  not  cHsenlial.tlieoinis- 
Bion  to  c:ill  inr  would  l>e  o|ii:n  to  ol)Si;i  v.iiion.  Holt's  11.  451.  Expenses  actuallv  inclined  slionid  bo 
proved,  and  a  pliytician'ij  lee,  unless  ai;tuiilly  piiid,  cannot  be  recoveieif.  1  Slarkie  11.287.  'i'lie 
state  and  siliiaiirjn  ol'  the  raniilv  at  tlic  time  should  be  proved  in  aggravation  of  damages,  3  Esp.  R. 
119;  audit  so,  that  the  defendant  profesHod  to  visit  the  Camily,  and  w,\s  received  as  the  Fuitor  of  tlio 
daugliier.  .0  Price,  G'll.  (t  lias  been  paid,  that  evidence  to  prove  that  delendanl  prevailed  bv  a  pro- 
mise of  marriage,  is  inadmissible.  3  Camp.  519.  I'eake  L.  K.  355.  See  5  Price,  Cil.  Andno  evi- 
dence o(^  the  danghlei-'K  general  cliaractei  (or  chastiiy  is  admissible,  unless  it  is  impngned.  1  Camp. 
469.  3  Catnp.  519.  The  defendant  may,  in  nii'.iga'ion  of  damages,  adduce  any  evidence  of  the  im- 
proper, negligent,  and  imprudent  conduct  ol  the  plaintifT himself;  as  where  he  knew  that  defendant 
was  a  married  iivan.  and  allowed  his  visits  in  the  probability  of  a  divorce.  Lord  Ivenvon  held  the  ac- 
tion could  not  be  maintained.  Pcake  II.  210.  And  evidence  may  I.e  given  on  an  inquisilion  of  da- 
mrtf-es  in  an  action  for  scdiinion,  that  llic  defendant  visitcrl  at  the  plaintiflT's  house  for  tlie  purpose  of 
payixi  J  his  adiiiciscs  to  tha  daugliier,  with  an  intention  of  marriaje.    5  Price,  611.  Chitty.. 


CHAP.  5]  BATTERY  OF  SERVANT.  75 

against  one  who  employs  my  slave.  For  thougli,  as  to  servants,  a  man 
who  has  not  notice  may  innocently  be  led  to  employ  one  to  whose  services 
another  person  is  entitled,  yet  as  to  slaves  it  is  otherwise.  For  if  the  per- 
son employed  be  a  slave,  the  person  hiring  must  know  that  by  hiring  him 
he  is  injuring  somebody.  And  whether  slave  or  not  is  a  matter  easily  deci- 
ded, since  by  law  every  negro  is  presumed  to  be  a  slave  unless  the  contrary 
appears,  and  the  slave  act  provides  that  all  who  are  not  so  shall  be  furnished 
with  a  copy  of  the  register  of  their  freedom.  1  R.  C.  ch.  Ill,  §67.  If, 
therefore,  a  man  employs  a  negro  without  a  copy  of  the  register,  he  does  it 
in  his  own  wrong,  and  if  he  is  even  imposed  on  by  a  forged  copy,  it  is  his 
folly  or  his  misfortune.     Fitzhugh  vs.  Pugh,  Winchester  superior  court. 

Certain  specific  penalties  are  also  prescribed  by  law  for  harboring  or  en- 
tertaining servants  and  others.  Thus,  for  harboring  or  entertaining  an  in- 
dented servant  not  having  a  certificate  of  his  freedom,  the  penalty  is  one 
dollar  per  day.     1  R.  C.  ch.  110,  §  12. 

For  harboring  or  concealing  an  apprentice  it  is  three  dollars  per  day.  1 
R.  C.  ch.  108,  §  30. 

For  secretly  harboring  or  entertaining  a  slave  without  the  master's  or 
overseer's  consent,  the  party  is  liable  to  be  prosecuted  as  for  a  misdemean- 
or.    1  R.  C.  ch.  111,§69. 

For  harboring  or  employing  any  negro  or  mulatto  who  has  not  a  certified 
copy  of  the  register  of  his  freedom,  the  penalty  is  five  dollars,  and  a  further 
liability  to  the  action  of  the  party  grieved.     Ibid,  §  72. 

"  The  other  point  of  injury,  is  that  of  beating,  confining,  or  disabling  a 
man's  servant,  which  depends  upon  the  same  principle  as  the  last:  viz. 
the  property  which  the  master  has  by  his  contract  acquired  in  the  labour  of 
the  servant.  In  this  case,  besides  the  remedy  of  an  action  of  battery  or 
imprisonment,  which  the  servant  himself  as  an  individual  may  have  against 
the  aggressor,  the  master  also,  as  a  recompense  for  his  immediate  loss,  may 
maintain  an  action  of  trespass  vi  et  arinis  ;  in  which  he  must  allege  and 
prove  the  special  damage  he  has  sustained  by  the  beating  of  his  servant, 
per  quod  sermtium  amisit ;  and  then  the  jury  will  make  him  a  proportiona- 
ble pecuniary  satisfaction. 

"  We  may  observe,  that  in  these  relative  injuries,  notice  is  only  taken  of 
the  wrong  done  to  the  superior  of  the  parties  related,  by  the  breach  and  dis- 
solution of  either  the  relation  itself,  or  at  least  the  advantages  accruing 
therefrom  ;  while  the  loss  of  the  inferior  by  such  injuries  is  totally  unregard- 
ed. One  reason  for  which  may  be  this  :  that  the  inferior  hath  no  kind  of 
property  in  the  company,  care,  or  assistance  of  the  superior,  as  the  supe- 
rior is  held  to  have  in  those  of  the  inferior;  and  therefore  the  inferior  can 
suffer  no  lessor  injury.  The  wife  cannot  recover  damages  for  beating  her 
husband,  for  she  hath  no  separate  interest  in  any  thing  during  her  cove- 
ture.  The  child  hath  no  property  in  his  father  or  guardian  ;  as  they  have 
in  him,  tor  the  sake  of  giving  him  education  and  nurture.  Yet  the  wife  or 
the  child,  if  the  husband  or  parent  be  slain,  [had  formerly  in  England]  a 
peculiar  species  of  criminal  prosecution  allowed  them,  in  the  nature  of  a 
civil  satisfaction,  which  is  called  an  appeal;  [but  this  is  taken  away  in 
England  by  a  late  statute.]  And  so  the  servant,  whose  master  is  disabled, 
does  not  thereby  lose  his  maintenance  or  wages.  He  had  no  property  iu 
his  master,  and  if  he  receives  his  part  of  the  stipulated  contract,  he  suffevs 
no  injury,  and  is  therefore  entitled  to  no  action,  for  any  battery  or  impri- 
sonment which  such  master  may  happen  to  endure." 


76  INJURIES  TO  PERSOxVAL  PROPERTY.  [  book  3. 

CHAPTER  VI. 

OF  INJURIES  TO  PERSOiNAL  PROPERTY. 

"In  the  preceding  chapter  we  considered  the  wrongs  or  injuries  that  af- 
fected the  rights  of  persons,  either  considered  as  individuals,  or  as  related 
to  each  other;  and  are  at  present  to  eiiter  upon  the  discussion  of  such  in- 
juries as  affect  the  rights  of  property,  together  with  the  remedies  which  the 
Jaw  has  given  to  repair  or  redress  them. 

"  And  here  again  we  must  follow  our  former  division  of  property  into 
personal  and  real:  personal,  which  consists  in  goods,  money,  and  all  other 
moveable  chattels,  and  things  thereunto  incident ;  a  property  which  may  at- 
tend a  man's  person  wherever  he  goes,  and  from  thence  receives  its  denomi- 
nation :  andreal  property,  which  consists  of  such  things  as  are  permanent, 
fixed,  and  immoveable  ;  as  lands,  tenements,  and  heraditaments  of  all  kinds, 
which  are  not  annexed  to  the  person,  nor  cannot  be  moved  from  the  place 
in  which  they  subsist. 

"  First,  then,  we  are  to  consider  the  injuries  that  may  be  offered  to  the 
rights  of  personal  property  ;  and  of  these,  first  the  rights  of  personal  pro- 
perty in  possession,  and  then  tliose  that  are  in  action  only. 

I.  '"  The  rights  of  personal  property  in  possession  are  liable  to  two  spe- 
cies of  injuries  :  the  amotion  or  deprivation  of  that  possession  ;  and  the 
abuse  or  damage  of  the  chattels,  while  the  possession  continues  in  the  le- 
gal owner.  The  former,  or  deprivation  of  possession,  is  also  divisible  into 
two  branches  ;  the  unjust  and  unlawful  taking  them  away  ;  and  the  unjust 
detaining  them,  thouoh  the  oricrinal  taking  mirrht  be  lawful. 

1.  "  And,  first,  of  an  unlawful  taking.  The  right  of  property  in  all  exter- 
nal things  being  solely  acquired  by  occupancy,  as  has  been  formerly  stated, 
and  preserved  and  transferred  by  grants,  deeds,  and  wills,  which  are  a  con- 
tinuation of  that  occupancy :  it  follows  as  a  necessary  consequence,  that 
when  I  have  once  gained  a  rightful  possession  of  any  goods  or  chattels, 
either  by  a  just  occupancy  or  by  a  legal  transfer,  whoever,  either  by  fraud 
or  force,  dispossesses  me  of  them,  is  guilty  of  a  transgression  against  the  law 
of  society,  which  is  a  kind  of  secondary  law  of  nature.  For  there  must  be 
an  end  of  all  social  commerce  between  man  and  man,  unless  private  pos- 
sessions be  secured  from  unjust  invasions:  and,  if  an  acquisition  of  goods 
by  either  force  or  fraud  were  allowed  to  be  a  sufficient  title,  all  property 
would  soon  be  confined  lo  the  most  strong,  or  the  most  cunning;  and  the 
weak  and  simple-minded  part  of  mankind  (which  is  by  far  the  most  numer- 
ous division)  could  never  be  secure  of  their  possessions. 

"The  wrongful  taking  of  goods,  being  thus  most  clearly  an  injury,  the 
next  consideration  is,  what  remedy  the  law  of  England  has  given  for  it. 
And  tills  is,  in  the  first  place,  the  restitution  of.  the  goods  themselves  so 
wrongfully  taken,  with  damages  for  the  loss  sustained  by  such  unjust  inva- 
sion ;  wliich  is  effected  by  action  ol' replevin ;  an  institution,  which  the 
mirror  ascribes  to  Glanvii,  chief  justice  to  king  Henry  the  Second.  This  ob- 
tains only  ill  one  instance  of  an  unlawful  taking,  that  of  a  wrongful  dis- 
tress :'  and  this  and  the  action  of  detinue,  (of  which  I  shall  presently  say 
more,)  are  almost  the  only  actions,  in  which  the  actual  specific  possession 
of  the  identical  personal  chattel  is  restored  to  the  proper  owner.  For  things 
personal  are  looked  upon  by  the  law  as  of  a  nature  so  transitory  and  perish- 

"  la  Mr.  Cliiity'8  nole  to  tliiR  pnssagR  iliis  is  denied,  ;mrl  in  1  Srh.  &.  Lefroy,  325,  3-37,  Lord  Redes- 
dnle  Fiiircejufuily  conlrovoi  is  ilie  posili.m  hero  laid  down  by  Blacksloiie,  and  lie  assigns  good  reason 
for  the  cxisicnce  of  ihe  reniodv,  where  mere  ii;i.<i  liec-ii  a  laiung  of  goods  by  one  man  from  another, 
thoiiuh  not  for  rent,  sa>ing  thai  the  poKKCssion  which  the  parly  held  was  pi-iina  facie  evidence  of  his 
right  of  properly,  and  thai  it  is  fairer  D  ilirow  ihe  or/rn:  «{  proof  of  the  title  npoii  the  person  who 
hag  not  h'.<il  thp  posf^epsion,  than  upon  him  who  has  liad  it.  In  Virginia,  howevfr,  by  8css.  Acts, 
1.^2,  ch.  '-29,  6  9,  it  ij  piovidid  that  the  action  of  replevin  shall  be  coiisiden^d  to  exist  in  no  other  ca- 
ses than  sucii  as  arise  under  (he  act  securing  ilic  payment  of  rents.    1  K.  C,  ch.  113. 


CHAP.  G.]  REPLEVIN.  77 

able,  that  it  is  for  the  most  part  impossible  either  to  ascertain  their  identity, 
or  to  restore  them  in  the  same  condition  as  when  they  came  to  the  hands  of 
the  wrongful  possessor.  And,  since  it  is  a  maxim  that  'lex  neminem  cogit 
ad  vana,  seu  impossibilia,'  it  therefore  contents  itself  in  general  with  re- 
storing, not  the  thing  itself,  but  a  pecuniary  equivalent  to  the  party  injured; 
by  giving  him  a  satisfaction  in  damages.  Eut  in  the  case  of  a  distress,  the 
goods  are  from  the  first  taking  in  the  custody  of  the  law,  and  not  merely  in 
that  of  the  distrainor;  and,  therefore,  they  may  not  only  be  identified,  but 
also  restored  to  their  first  possessor,  without  any  material  change  in  their 
condition.  And,  being  thus  in  the  custody  of  the  law,  the  taking  them 
back  by  force  is  looked  upon  as  an  atrocious  injury,  and  denominated  a 
rescous,  for  which  the  distrainor  has  a  remedy  in  damages,  either  by  writ  of 
rescous,  in  case  they  were  going  to  the  pound,  or  by  writ  de  parco  fracto, 
or  pound-breach,  in  case  they  were  actually  impounded.  He  may  also  at 
his  option  bring  an  action  on  the  case  for  this  injury. 

"  An  action  of  replevin,  the  regular  way  of  contesting  the  validity  of  the 
transaction,  is  founded,  (says  Mr.  Blackstone,)  upon  a  distress  taken  wrong- 
fully and  without  sufficient  cause  :  being  a  re-delivery  of  the  pledge,  or 
thing  taken  in  distress,  to  the  owner;  upon  his  giving  security  to  try  the 
right  of  the  distress,  and  to  restore  it  if  the  right  be  adjudged  against  him  : 
after  which  the  distrainor  may  keep  it,  till  tender  made  of  sufficient  amends  : 
but  must  then  re-deliver  it  to  the  owner." 

In  order  to  obtain  a  writ  of  replevin  under  our  act,  1  R.  C.  ch.  113,  the 
party  praying  the  writ  must  first  enter  into  bond,  with  one  or  more  suffi- 
cient securities,  in  the  clerk's  office.  Where  the  replevin  is  sued  out  by  a 
person  not  bound  for  the  rent,  but  claiming  title  to  the  goods  distrained,  the 
value  of  the  property  sought  to  be  replevied  must  be  ascertained  by  the  oaths 
of  two  disinterested  freeholders,  sworn  before  some  justice  of  the  peace, 
and  the  bond  must  be  in  a  penalty  equal  to  double  the  amount  of  the  valu- 
ation. Where  the  replevin  is  sued  out  by  the  tenant  or  other  person  bound 
for  the  rent,  the  bond  must  be  in  a  penalty  equal  to  twice  the  amount  of 
the  rent.  In  both  these  cases  the  condition  is  to  perform  and  satisfy  the 
judgment  of  the  court  in  case  the  party  be  cast.  "The  sheriflT,  on  receiving 
such  security,  is  immediately,  by  his  officers,  to  cause  the  chattels  taken  in 
distress  to  be  restored  into  the  possession  of  the  party  distrained  upon  ;  un- 
less the  distrainor  claims  a  property  in  the  goods  so  taken.  For  if,  by  this 
method  of  distress,  the  distrainor  happens  to  come  again  into  possession  of 
his  own  property  in  goods  which  before  he  had  lost,  the  law  allows  him  to 
keep  them,  without  any  reference  to  the  manner  by  which  he  thus  has  gained 
possession;  being  a  kind  of  personal  remitter.  If.  therefore,  the  distrain- 
or claims  any  such  property,  the  party  replevying  must  sue  out  a  writ  de 
proprietate  probanda,  in  which  the  sheriff"  is  to  try,  by  an  inquest,  in  whom 
the  property  previous  to  the  distress  subsisted.  And  if  it  be  found  to  be  in 
the  distrainor,  the  sheriff"  can  proceed  no  farther;  but  must  return  the  claim 
of  property  to  the  court  of  king's  bench  or  common  pleas  to  be  there  far- 
ther prosecuted,  if  thought  advisable,  and  there  finally  determined. 

"But  if  no  claim  of  property  be  put  in,  or  if  (upon  trial)  the  sheriff''s 
inquest  determines  it  against  the  distrainor;  then  the  sheriff"  is  to  replevy 
the  goods,  (making  use  of  even  force,  if  the  distrainor  makes  resistance,) 
in  case  the  goods  be  found  within  his  county.  But  if  the  distress  be  car- 
ried out  of  the  county,  or  concealed,  then  the  sheriff"  may  return  that  the 
goods,  or  beasts,  are  eloigned,  elongata,  carried  to  a  distance,  to  places  to 
him  unknown:  and  thereupon  the  party  replevying  shall  have  a  writ  of 
capias  in  ivithernam,  in  vetito  (or,  more  properly,  repetito)  namio  :  a  term 
which  signifies  a  secpnd  or  reciprocal  distress,  in  lieu  of  the  first  which  was 
eloigned.     It  is  therefore  a  command  to  the  sheriff' to  take  other  goods  of 


78  REPLEVIN.  [  BOOK  3, 

the  distrainor,  in  lieu  of  the  distress  formerly  taken,  and  eloigned,  or  with- 
held from  the  owner.  So  that  here  is  now  distress  against  distress ;  one 
beincr  taken  to  answer  the  other,  by  way  of  reprisal,  and  as  a  punishment 
for  the  illegal  behaviour  of  the  original  distrainor.  For  which  reason  goods 
taken  in  withernam  cannot  be  replevied,  till  the  original  distress  is  forthcom- 
ing. 

"But,  in  common  cases,  the  goods  are  delivered  back  to  the  party  reple- 

^y'"»-  .  ■      •         ,.    • 

"  Upon  this  action  brought,  and  declaration  filed,  the  distrainor,  who  13 
now  the  defendant,  makes  avowry  :  that  is,  he  avows  taking  the  distress  in 
his  own  right,  or  the  right  of  his  wife  ;  and  sets  forth  the  reason  of  it,  as  for 
rent  arrere,  damafre  done,  or  other  cause  :  or  else,  if  he  justifies  in  another's 
right  as  his  bailifl:'or  servant,  he  is  said  to  make  cognizance  ;  that  is,  he  ac- 
knowledges the  taking,  but  insists  that  such  taking  was  legal,  as  he  acted 
by  the  command  of  one  who  had  a  right  to  distrain  ;  and  on  the  truth  and 
legal  merits  of  this  avowry  or  cognizance  the  cause  is  determined.  If  it  be 
determined  for  the  plaintiff;  viz.  that  the  distress  was  wrongfully  taken; 
he  has  already  got  his  goods  back  into  his  own  possession,  and  shall  keep 
them,  and  moreover  recover  damages."  But  if  the  defendant  prevails,  the 
judgment  at  common  law  was  for  the  return  of  the  goods; — de  retorno 
habendo.  But  by  our  law  the  further  proceedins;',  where  the  defendant  pre- 
%'ails,  depends  on  the  nature  of  the  replevin.  Where  the  writ  has  been  sued 
out  by  a  third  party,  not  bound  for  the  rent,  and  claiming  title  to  the  goods, 
the  jury  upon  the  trial,  if  they  find  against  the  party  claiming  the  property, 
ascertain  the  value  of  the  property,  and  the  damages  (not  less  than  10  per 
cent,  upon  such  value)  which  the  defendant  in  replevin  has  sustained  by 
the  plaintiff  suing  out  the  writ,  and  judgment  is  entered  for  the  value  with 
interest  from  the  date  of  the  writ,  and  damages  and  costs.  When  the  te- 
nant sues  out  the  writ  of  replevin  and  fails,  the  jury  ascertains*  the  rent  in 
arrear,  and  damages  not  less  than  10  per  cent,  on  the  amount  so  due,  and 
judgment  is^entered  for  principal,  interest,  damages,  and  costs  accordingly. 
In  both  cases,  if  the  plaintifl^  in  replevin  is  nonsuit  before  issue  joined,  the 
court,  upon  the  suggestion  of  the  defendant  in  the  nature  of  an  avowry, 
awards  a  writ  of  enquiry  to  ascertain  the  value  of  the  property,  or  the  a- 
mount  of  rent,  (as  tlie  case  may  be,)  and  the  damages  and  judgment  are 
given  accordingly. 

Observe  ;  the  plaintiff  in  replevin  cannot  be  nonsuit  after  issue  joined  in 
replevin,  for  in  that  action  both  parties  are  considered  plaintiffs  after  the  is- 
sue has  been  joined,  the  tenant  demanding  damages  for  the  distress,  and 
the  landlord  demanding  by  his  avowry  judgment  lor  his  rent.  See  1  Black. 
Rep.  375.     1  Esp.  378.     3  T.  R.  OGL 

After  obtaining  judgment  in  replevin,  if  the  tenant  or  person  replevying 
prove  insufficient,  the  landlord  may  sue  upon  the  replevin  bond  in  order  to 
charge  the  securities. 

If  the  plaintiff  in  replevin  succeeds,  the  jury,  as  we  have  seen,  assess  his 
damages,  for  which,  and  for  his  costs,  he  has  a  judgment  rendered  in  his 
favor.  For  replevin  is  in  its  nature  an  action  of  trespass,  and  the  plaintifTs 
declaration  complains,  as  in  trespass,  of  an  unlawful  taking  of  his  property, 
and  its  unjust  detention.  It  should  also  set  out  certainly  the  property  fa- 
ken,  and  this,  I  presume,  is  particularly  necessary, where  goods  are  replevied 
by  third  persons  claiming  the  proj)erty  and  asserting  its  exemption  from  dis- 
tress ;  for  the  statute  now  requires,  as  I  have  already  stated,  that  if  in  such 
case  the  plaintiff  fails,  the  defendant  shall  have  judirment  for  the  value  of  the 
goods  distrained,  and  damages  as  above  mentioned. 

*  In  replevin,  tlic  landlord,  if  guccCEarul,  formerly  recovered  double  rent. 


CHAP.  6.]  REPLEVIN.  79 

To  the  dechrntion  of  the  plaintiff,  the  landlord  either /^Zearfs  or  avows, 
according  to  circumstances.  Thus  he  may  deny  the  taking  of  the  goods 
altogether,  by  pleading  the  general  issue,  which  is  non  cepit  :  or  he  may 
plead  the  act  of  limitations  in  bar.  These  pleas  waving  both  an  assertion 
of  the  defendant's  right  to  take  the  property,  and  a  denial  of  the  plaintiff's, 
absolve  Ai/tt  from  the  necessity  of  proving  his  right.  So,  too,  the  defendant 
may  plead  a  justification,  and  this  admits  the  taking.  As,  for  instance,  he 
may  allege  that  the  property  distrained  belonged  to  himself  or  a  stranger  ; 
and  if  so  the  plaintiff  had  no  right  to  complain:  since,  if  the  property  was 
in  the  distrainor,  he  had  a  righl  to  take  it,  and  if  in  a  stranger,  though  the 
plaintiff  might  have  maintained  trespass  which  only  seeks  damages  for  a 
wrong  done,  he  cannot  maintain  replevin,  for  that  action  takes  the  property 
out  of  the  hands  where  the  law  found  it,  which  the  law  never  does  except 
for  the  true  owner.     See  10  Mod.  25. 

The  most  usual  defence,  however,  is  what  is  called  an  avowry,  which  Mr. 
Blackstone  explains.  This  avowry  is  now  confined  to  rent  in  arrear,  by  the 
act  abolishing  replevins  in  all  other  cases.  In  it,  the  plaintiff  sets  out  the 
ground  of  his  claim  of  rent,  and  that  it  was  in  arrear,  and  therefore  he 
distrained  the  goods.  Upon  common  law  principles  some  nicety  exists  in 
drawing  an  avowry,  as  it  is  necessary  in  strictness  that  the  plaintiff  should 
set  forth  his  title,  shewing  that  either  he  himself,  or  some  person  under 
whom  he  claims,  was  seized,  and  leased  reserving  rent  ;  and  in  the  latter 
case  shewing  how  he  claims  under  such  person.  See  2  Saun.  284,  c.  d.  in 
note.  2  Chitty,  512.  An  English  statute  has  removed  this  difficulty,  and 
permits  a  general  avowry.  The  common  law  remains  unchanged  with  us. 
2  Leigh,  372,  In  this  avowry,  where  there  are  several  parceners  entitled  t^ 
the  rent,  they  should  all  join,  for  they  make  but  one  heir,  and  ought  all  to 
be  sued,  as  they  ought  all  to  join  also  in  the  distress. 

The  plaintiff  may  plead  to  the  avowry  that  there  is  no  rent  in  arrear — or 
the  statute  of  limitations — or  eviction  or  expulsion, — the  principles  of  which 
last  pleas  have  been  sufficiently  developed  in  the  notes  to  former  passages 
of  this  work.  It  is  provided  by  our  law  that  the  plaintiff  in  replevin  may 
plead  as  many  several  matters,  whether  of  law  or  fact,  as  he  may  think  ne- 
cessary for  his  defence.     I  R.  C.  ch.  128,  §88. 

If  the  goods  of  several  persons  are  taken,  they  cannot  join  in  suing  out  a 
replevin  ;  nor  can  tenants  in  common  join  in  distraining  and  in  avowing, 
but  joint-tenants  and  coparceners  may  and  ought  to  do  so.  Where  one 
tenant  in  common  distrains  for  the  whole,  he  must  avow  for  his  undivided 
moiety,  and  makes  cognizance  (i.  e.  acknowledge  the  taking)  for  the  other 
moiety,  as  bailitl  of  his  companion.     See  the  form,  2  Chitty,  514. 

For  the  speedy  decision  of  writs  of  replevin,  it  is  provided  that  they 
shall  be  tried  without  waiting  for  their  turn  upon  the  docket.  1  R.  C.  ch. 
113,  §25. 

It  may  be  proper  here  to  remark,  that  replevin  by  the  tenant  is  only  ad- 
visable where  the  rent  is  not  due  ;  for  if  the  rent  be  due  the  landlord  must 
succeed,  however  irrescular  his  distress.  If,  indeed,  he  has  distrained  for 
too  much,  or  the  distress  be  excessive  or  irregular,  he  is  liable,  but  not  in 
this  form  of  action.  See  I  Hen.  Bl.  13.  The  remedy  must  be  by  action 
on  the  case,  or  by  action  of  trespass,  if  he  has  by  his  conduct  made  himself 
a  trespasser  ab  initio. 

2.  "Deprivation  of  possession  may  also  be  by  an  unjust  detainer  of  ano- 
ther's goods,  though  the  original  taking  was  lawful.  As  if  I  distrain  ano- 
ther's cattle  damage-feasant,  and  before  they  are  impounded  he  tenders  me 
sufficient  amends  ;  now,  though  the  original  taking  was  lawful,  my  subse- 
quent detainment  of  them  after  the  tender  of  amends  is  wrongful,  and  he 
shall  have  an  action   of  replevin  against  me  to  recover  them  :  in  which  he 


80  DETINUE.  [book  3. 

shall  recover  damages  only  for  the  detention  and  not  for  the  caption,  because 
the  oriofinal  taking  was  lawful.  Or,  if  I  lend  a  man  a  horse,  and  he  after- 
wards refuses  to  restore  it,  this  injury  consists  in  the  detaining,  and  not  in 
the  orio-inal  taking,  and  the  regular  method  for  me  to  recover  possession  is 
by  action  of  detinue.  In  this  action  of  detinue,  it  is  necessary  to  ascertain 
the  thing  detained,  in  such  manner  as  that  it  may  be  specifically  known  and 
recovered.  Therefore,  it  cannot  be  brought  for  money,  corn,  or  the  like  ; 
for  that  cannot  be  known  from  other  money  or  corn  ;  unless  it  be  in  a  bag 
or  a  sack,  for  then  it  may  be  distinguishably  marked.  In  order,  therefore,  to 
ground  an  action  of  detinue,  which  is  only  for  the  detaining,  these  points 
are  necessary  :  1.  That  the  defendant  should  have  had  possession  at  some 
time  before  the  suit  brought,  for  if  not,  the  plea  oi' nan  detinet  must  of  course 
be  found  for  him."  1  Wash.30S.  If  possession  is  proved  in  defendant  at 
any  time  before  the  action,  it  is  enough,  though  he  had  not  possession  when 
it  was  commenced,  unless  he  shews  that  he  has  been  legally  dispossessed. 
1  Wash.  308.     See  3  Leigh,  68-2. 

It  is  a  common  opinion  in  the  old  books,  that  this  action  will  not  lie 
where  the  defendant  comes  into  possession  tortiously.  But  it  would  be 
very  unreasonable  that  the  law  should  permit  a  trespasser  to  hold  my  pro- 
perty against  my  will,  though  the  more  innocent^nc/er  cannot.  The  opin- 
ion is  therefore  in  later  cases  justly  questioned  :  for  the  allegation  of  finding 
which  is  laid  in  the  declaration,  is  not  traversable,  that  is  to  say,  the  plain- 
tiff cannot,  by  the  defendant's  plea,  be  put  to  proof  of  that  fact;  I  Cliitly, 
I'H)  ;  and  it  has  moreover  been  expressly  decided, that  detinue  may  be  main- 
tained, though  the  defendant  got  possession  tortiously.  1  Bos.  Sc  Pul.  N. 
R.  140. 

2.  It  is  absolutely  necessary,  however,  to  maintain  this  action,  that  the 
plaintiff  should  have  a  property  in  the  goods  ;  1  Wash.  308,  312;  but  a  spe- 
cial property  in  the  plaintiff  is  sufficient  if  the  action  be  against  any  other 
than  the  true  owner.  Thus  a  bailee  may  maintain  detinue  for  the  property 
against  any  person  who  unlawfully  detains  it  from  him,  1  Chitty,  J  IS.  2 
Saun.  47,  b.  c.  d. 

It  is  not  essential  that  the  plaintifi'  sliould  ever  have  had  possession  to 
enable  him  to  maintain  his  action.  1  Chitty,  118.  2  Selw.  N.  P.  593. 
But  he  must  have  a  right  to  the  possession  when  the  action  is  brought.  7 
T.  R.  9. 

3.  It  is  essential  that  the  goods  themselves  be  of  some  value  ;  and  4.  That 
they  be  ascertained  in  point  of  identity.  Hence  the  declaration  in  detinue 
should  be  more  precise  in  the  description  of  the  property,  than  in  actions  of 
trover  or  replevin.  2  Saun.  74,  a.  b.  Yet  it  is  unsafe  to  be  too  minute,  lest 
the  evidence  vary  from  the  description,  which  would,  I  presume,  be  fatal. 
On  this  subject  it  has  been  decided  that  detinue  for  a  negro  child  without 
naming  it,  but  describing  it  as  the  child  of  such  a  mother,  is  good.  4  H. 
&  M.  478.  At  least  if  it  be  a  defect  it  is  cured  by  a  verdict.  2  Mun.  539. 
In  that  case  the  declaration  was  for  a  negro  woman  and  her  issue. 

Of  the  declaration.  The  form  of  the  declaration  will  be  found  2  Chitty, 
235.  But  though  the  declaration  omits  the  words  "  tliat  the  defendant  ren- 
der to  the  plaintiff,  Stc."  it  is  cured  by  a  verdict.  0  IMun.  48G.  It  should, 
however,  allege  that  the  thing  claimed  was  the  j)roperty  of  the  plaintiff.  4 
Mun.  72.  It  should  describe  with  reasonable  certainty,  and  set  forth  the 
value  of  the  property  demanded  ;  and  if  there  be  several  articles,  separate 
values  must  be  laid  for  each,  though  error  herein  will  also  be  cured  by  a  ver- 
dict severing  the  values.  2  Mun.  5.39.  But  though  the  plaintiff  must  lay 
a  value  upon  the  property  in  his  declaration,  the  jury  may  exceed  it.  1  H. 
&.  M.  54.  And  this  upon  good  reason,  for  during  the  pendency  of  the  suit, 
the  property  (e.  g,  a  slave)  might  have  greatly  appreciated. 


CHAP.  6.J  DETIxNUE.  81 

The  declaration  states  a  vefiisal  to  deliver,  •'  though  the  defendant  was 
often  requested."  This  general  charge  usually  suffices.  A  special  request 
is  only  necessary,  I  conceive,'  where  it  is  a  prerequisite  to  the  plaintiff's 
right  to  the  possession.  As  where  property  is  bailed  for  an  indefinite  time 
by  A  to  B  ; — there  B  has  a  right  to  the  possession  till  A  actually  demands 
it.     In  other  cases,  however,  it  is  not  necessary.     3  Mun.  1*22. 

When  an  executor  or  administrator  brings  detinue  for  the  property  of  his 
testator,  of  which  he  himself  has  had  possession,  he  may  declare  upon  his 
own  possession,  and  therefore  need  not  produce  the  letters  testamentary  at 
the  trial,  unless  they  be  called  for  by  notice.  3  Call,  554.  And  where  an 
executor  or  administrator  takes  possession  of  slaves  in  which  his  testator 
had  but  an  estate  terminable  upon  his  dying  without  issue  living  at  his  death, 
he  should  be  sued  personally,  and  not  as  executor  or  administrator.  2  Mun. 
479.* 

Of  the  plea.  The  general  issue  in  detinue  isnon  delinet.  The  statute  of 
limitations,  as  has  been  already  said,  need  not  be  pleaded. 

As  the  requisition  of  a  property  in  the  plaintiff  is  essential,  so  it  is  always 
a  good  defence  for  the  defendant  to  prove  that  the  right  of  property  is  in 
himself  by  reason  of  a  gift  from  the  plaintiff,  or  other-.vise.  Hence,  also,  he 
may  prove  under  the  issue  of  non  detinet,  facts  whicii  go  to  shew  that  the 
property  is  in  another — as  that  a  deed  under  which  the  plaintiff  claims  the 
property  was  fraudulent  as  to  creditors,  and  that  he  himself  claims  under  a 
sheriff's  sale  by  virtue  of  an  execution  against  the  grantor.  2  Mun.  329. 
2  Leigh,  347.  So  he  may  protect  himself  on  the  plea  oi  non  delinet,  and  with- 
out pleading  the  act  of  limitations,  by  proving  five  years'  possession  before 
the  suit  brought,  for  such  possession  gives  title.  3  Call,  85.  4  Mun.  301. 
5  Mun.  101.  6  Mun.  357.  In^like  manner,  if  a  man  has  had  five  years' 
possession,  acquired  without  force  or  fraud,  and  then  is  divested  of  it,  he 
may  maintain  detinue,  and  his  five  years'  possession  v/ill  be  sufficient  proof 
of  title.  3  H.  &.  M.  57.  5  Cranch,  360.  But  in  these  cases  the  possession 
must  always  be  adverse  and  with  a  claim  of  property,  or  it  gives  no  title. 
See  2  Leigh,  347. 

The  defendant  may  also,  on  non  detinet,  rely  upon  the  plaintiff's  right 
being  in  reversion,  and  not  immediate,  for  if  so  he  has  no  right  in'  this  ac- 
tion to  recover  the  possession.  7  T.  R.  9.  He  cannot,  however,  under 
that  plea,  shew  that  the  goods  were  pawned  to  him  by  the  plaintiff,  or  that 
they  were  bailed  to  him,  and  have  been  lost  or  destroyed  without  his  default. 
These,  though  good  defences,  must  .be  pleaded;  for  the  plaintiff  should 
have  notice  of  them.     1  Chitty,  121. 

If  the  plaintiff  claims  under  A,  and  the  defendant  also  sets  up  a  claim 
under  him  by  virtue  of  a  bill  of  sale,  which  the  plaintiiT  contends  was  frau- 
dulent against  him  as  creditor  6r  purchaser  of  A,  evidence  of  such  fraud  is 
proper,  as  also  is  evidence  of  parol  declarations  of  the  defendant  disclaiming 
title  after  he  had  notice  of  plaintiff's  purchase,  and  before  he  himself  had 
obtained  possession.     4  Mun.  373. 

The  verdict  of  the  jury  should  find  as  to  all  the  articles  of  property  claim- 
ed in  the  declaration,  and  formerly  where  this  was  not  done,  a  venire  de 
novo  was  awarded.  1  V/ash.  76.  But  now  the  plaintiff  is  barred  as  to  the 
things  omitted.  1  II.  C.  ch.  128,  §  105.  But  where  several  articles  are 
demanded  the  verdict  may  find  for  the  plaintiff  as  to  some,  and  for  the  de- 

*  In  Catlett  vs.  Russell,  in  the  court  of  appeals  in  April  iSo5,  the  question  was  much  agitated  as  to 
the  mode  of  proceeding  in  deiiniie  when  the  defendant  died  in  possession  of  the  properly.  It  was 
decided  that  detinue  would  only  be  against  an  executor  as  such  when  the  possession  actually  came  to 
his  hands,  and  that  the  action  could  only  he  reviveil  by  scire  facias  in  respect  of  such  possession. 
The  scire  facias  therefore,  or  the  declaration  thereupon,  niu.-;t  allejje  that  fact.  Ff  tbund  against  the  exe- 
cutor, the  judgment  is  for  the  thing  or  the  value,  and  the  distiingas  issues  afjainst  his  proper  goods  and 
■shaitels,  lands  and  tenements. 

VOL.   2~I1  * 


82  DETINUE,  [  BOOK  ^ 

fendant  as  to  others.  The  jury  must  also  ascertain  the  price  or  value  of  the 
property  demanded  ;  but  if  this  be  omitted,  the  court  may  direct  a  writ  of 
enquiry  to  ascertain  it.  1  R.  C.  ch.  129,  §  105.  This  value  ought  not  to 
be  jointly  assessed  of  several  articles.  Separate  values  should  he  found,  or 
there  must  be  a  writ  of  enquiry  to  ascertain  them.*  2  Call,  Sl-i.  2  Mun. 
539.  But  the  jury  may  find  general  or  joint  damages  for  detaining  several 
slaves.  2  Mun.  539.  The  diversity  arises  from  the  consideration  that  the 
judgment  is  so  entered  that  if  any  article  of  the  property  cannot  be  had  in 
specie,  the  plaintifT  will  be  entitled  to  the  alicrnative  value.  The  value  of 
each  article  should  of  course  be  ascertained,  since  the  plaintiff  may  be  able 
to  get  one  part  of  the  property  in  specie,  though  he  cannot  get  another.  As 
to  the  damages  no  such  reason  exists. 

If  the  jury  find  a  special  verdict,  no  circumstance  should  be  omitted 
which  is  necessary  to  ascertain  whether  the  plaintiff  is  entitled  or  not.  Such 
omission  will  render  a  rewire  de  novo  necessary.     1  H.  &.  M.  213. 

The  verdict  should  answer  to  all  the  issues.  1  H.  &,  M.  374.  4  Mun, 
145.  It  should  also  ascertain  the  damages  for  the  detention  ;  as  in  case  of 
slaves,  the  value  of  their  hires  or  services  while  detained  ;  and  these  dama- 
ges are  estimated  to  the  time  of  the  verdict,  and  not  merely  to  the  date  of 
the  Vi'rit.  See  4  Mun.  530.  If,  however,  the  defendant  appeals  from  the 
judgment  against  him,  it  seems  that  although  he  thereby  keeps  possession  of 
the  property  till  the  final  affirmance  by  the  appellate  court,  no  action  lies  to 
recover  the  mesne  or  intermediate  profits.  4  Mun.  528. t  Nor  does  a  bill 
in  chancery  lie  for  that  purpose.  4  H.  &  M.  470.  Nor  are  there  any 
means  by  which  the  plaintiiT  can  get  the  intermediate  hires  between  the  date 
of  the  verdict  and  the  entry  of  the  judgment.     4  Mun.  531. 

Although  the  plea  "non  detinet"  is  in  the  present  tense,  yet,  as  I  have  al- 
ready said,  proof  of  possession  in  the  defendant  at  any  time  before  the  suit 
brought,  is  held  sufficient;  1  Wash.  308;  unless  the  defendant  has  been 
len-aliy  dispossessed  ;  for  otherwise  justice  might  be  defeated  by  the  wrong- 
doer passing  away  his  right  as  soon  as  he  found  he  was  about  to  be  sued. 
If,  therefore,  after  suit  brought  against  A  for  a  slave,  he  sells  him  to  B, 
the  plaintiff  may  yet  proceed  to  judgment,  and  the  slave  may  be  taken  out 
of  B's  possession  if  to  be  found,  for  he  is  a  purchaser  pendente  lite,  and 
bound  by  the  verdict  and  judgment.  But  if  the  plaintiff  gets  a  judgment 
for  a  slave  against  A,  he  cannot  afterwards  sue  B,  to  whom  A  sold  him 
before  suit  brought,  for  then  he  would  have  two  judgments  for  the  same 
property.  1  H.  &-  M.  450.  Fnit  I  presume  he  may  have  a  scire  facias.  See 
3  B.  C.  413.  It  is  on  a  like  principle  that  after  judgment  in  detinue,  anew 
action  of  detinue  against  the  same  defendant  for  the  same  thing  will  not  lie. 
G  Mun.  10. 

Suppose,  however,  after  suit  brought,  and  before  trial,  the  slave  dies. 
"Will  the  plaintiff  recover  the  value  of  the  slave  when  living,  or  not  ?  This 
subject  was  much  discussed  in  Austin's  executors  vs.  Jones.  Gil.  341.  In 
that  case,  however,  Judge  Coalter  being  of  opinion  that  the  defendant  was 
not  liable  for  the  value  alter  the  slave  was  dead,  and  Judge  Brooke  being  of 
the  contrary  opinion,  and  Judge  Roane,  the  remaining  judge,  determining 
only  that  as  the  death  of  the  slave  during  the  pendency  of  the  suit  had  not 
been  pleaded,  the  defendant  could  not  avail  himself  of  the  finding  of  tho 
jury  to  that  effect,  since  it  was  a  finding  of  a  matter  not  in  issue,  the  ques- 
tion cannot  be  considered  as  settled.  With  all  deference  to  this  high  au- 
thority, I  would  suggest  that  such  plea  could  not  have  been  pleaded  ;  for, 
upon  Judge  Roane's  own  principles,  it  would  not  have  barred  the  action 

*  1  R.  C.  ch.  128,  ^  lO."),  provides  the  writ  of  enquiry  where  llie  nriceor  \ahie  is  omi'ted.  A  «e«i- 
rt  de  novo  would  sccin  i<j  be  the  regiil.ir  course  according  to  orcljftary  principles,  when  llie  valuM 
of  several  thing*  .ire  improperly  \o\\m\  joiiitty. 

'  The  luw  i(  now  oihcrwi«c,    Sec^.  ncti  1330,  ch.  r?L 


«HAP.  6.]  DETINUE.  8S 

entirely,  since  the  pluin^fF  certainly  had  a  right  of  action  when  he  sued, 
and  ought  at  least  to  have  had  damages  for  detention  :  and  unless  it  could 
be  pleaded  as  a  good  bar  to  the  action  in  toto,  it  could  not  be  pleaded  at  all. 
On  the  other  l?and,  Judge  Brooke's  opinion  that  tlie  party  ought  to  recover 
the  value,  notwithstanding  the  death,  is  successfully  combatted  by  Judge 
Coalter,  who  takes  the  obvious  distinction  between  the  actions  of  trover  and 
detinue; — that  in  trover,  the  plaintiff  admits  a  change  of  property,  and  if  it 
dies,  it  dies  the  properly  of  the  defendant,  who  having  converted  it,  is  es- 
topped to  say  the  property  was  the  property  of  the  plaintiff,  and  thus  throw 
the  loss  on  him.  But  in  detinue  the  plaintiff  still  affirming  property  in  him- 
self, the  life  of  the  slave  is  at  his  risk.  From  the  consideration  urged  by 
Judge  Coalter,  it  seems  to  me  that  the  proper  course  in  such  case  is  to  plead 
the  death  since  the  last  continuance  in  bar  of  the  recovery  of  the  slave  or 
"his  value:  for  the  loss  or  destruction  of  the  property  bailed,  is  admitted 
to  be  a  good  defence,  if  properly  pleaded.  1  Chitty,  121.  But  such  plea 
admitting  the  detention,  the  plaintiff  would  bs  entitled  to  his  damages  and 
a  writ  of  enquiry  thereof.  If,  indeed,  the  slave  came  to  his  death  by  reason 
of  the  defendant's  treatment,  another  action  would  perhaps  afterwards  lie 
to  recover  compensation  in  damages  therefor. 

The  verdict  of  the  jury  (when  it  is  rendered  for  the  plaintiff)  finds  to  the 
following  effect:  "  We,  the  jury,  find  for  the  plaintiff  the  slaves  in  the  de- 
claration mentioned,  of  the  value  following  ;  that  is  to  say,  negro  Harry,  of 
the  value  of  $500;  negro  Tom,  of  the  value  of  $400;  and  negro  Sarah, 
of  the  value  of  $250:  and  we  farther  find  for  the  plaintiff  $500  damages 
for  the  detention  of  the  said  slaves."  The  judgment  is  then  rendered  for 
the  slaves,  if  to  be  had,  and  if  not,  for  the  alternative  value,  and  for  the 
damages  and  costs. 

The  next  step  to  be  considered  is  the  execution  to  be  issued  upon  this 
judgment.  The  proper  execution  is  a  distringas,  which  Mr.  Blackstone 
cursorily  mentions  in  his  3d  book,  page  41-3.  This  is  a  writ  which  he  tells 
us  commands  the  sheriff  to  distrain  the  goods  and  chattels  of  the  defendant, 
^•'so  that  neither  he  nor  any  person  by  him  (i.  e.  his  authority)  may  lay 
hands  on  them."  It  appears,  however,  that  not  only  the  goods  and  chat- 
tels, but  the  lands  and  tenements  of  the  defendant  are  distrained,  and  the 
sheriff  is  directed  to  take  the  issues  thereof  until  the  defendant  produce 
the  property  "  of  the  value  of  so  much,  if  it  may  be  had,  or  the  price 
aforesaid,  if  it  is  not  to  be  had."  See  5  Mun.  169,  170.  In  pursuance  of 
this  writ,  the  sheriff  takes  all  the  defendant's  lands  and  goods  into  his  pos- 
session, and  receives  the  issues  and  profits  thereof,  until  he  gives  up  the 
property.  These,  however,  are  not  applied  to  the  satisfaction  of  the  claim, 
for  the  distringas  is  a  mere  measure  of  constraint;  the  party  is  considered 
in  contempt,  and  the  rents  and  profits  go  to  the  commonwealth.  6  Com. 
Dig.  100,  101.  Gilb.  Ex.  27,  &c.  cited  5  Mun.  171.  If  the  defendant  con- 
tinues obstinate,  and  the  distringas  is  returned  executed  without  satisfac- 
tion, the  court  may  direct  it  to  be  superseded  so  fur  as  relates  to  the  speci- 
fic thing,  and  award  a  new  distringas  to  be  executed  for  the  alternative 
value  only  ;  and  if,  after  this,  it  appears  that  the  plaintiff  cannot  get  the  pro- 
perty by  the  distringas,  a  casa  or  fifa  may  be  awarded  for  the  alternative 
value.  These  executions  ought  to  be  av.'arded  by  the  court  upon  motion, 
of  which  motion,  hovv'ever,  there  need  be  no  notice  given  to  the  defendant. 
5  Mun.  166. 

From  this  view  of  the  subject,  it  will  appear  that,  after  all,  the  plaintiff 
may  be  foiled  in  his  attempts  to  recover  the  identical  property  for  which  he 
sues  ;  and  this  is  the  more  clear  since  the  sheriff  cannot,  on  a  distringas,  dis- 
train the  very  property  for  which  the  execution  issued,  nor  can  he  seize  and 
sell  it  to  pny  the  damages  in  the  execution.     3  Ran.  601.     Yet  an  opinion 


84  TROVER.  [  BOOK  3. 

has  been  intimated  that  the  object  may  be  obtained  through  the  assistance 
of  a  court  of  equity,  where  the  properly  has  a  peculiar  value.  See  what  is 
!5aid  by  Judge  Green,  3  Ran.  175,  J76. 

Bail  is  required  in  actions  of  detinue  ;  but  the  recognizance  of  bail  dif- 
fers from  the  recognizance  in  other  actions  ;  for 

The  bail  undertakes  "  tliat  the  principal  if  cast  will  satisfy  the  condem- 
nation [judgment]  of  the  court,  either  by  rendering  up  the  property  and 
paying  all  damages  and  costs,  or  by  paying  the  alternative  value  and  dam- 
ages and  costs,  ok  by  rendering  his  body  to  prison  ;  or  the  bail  will  do  it 
[that  is,  some  one  of  those  three  things,]  for  him.  If,  therefore,  the  bail 
renders  the  principal's  body  to  prison  he  is  discharged.  If  the  principal 
fails  in  his  undertaking,  the  plaintiff  then  proceeds  against  the  bail  by  scire 
facias,  as  will  be  hereafter  more  fully  explained. 

When  the  value  of  the  property  does  not  exceed  twenty  dollars,  the  plain- 
tiff must  bring  his  warrant  before  a  justice  of  peace,  who  alone  has  juris- 
diction ;  otherwise  he  will  be  nonsuited.     1  R.  C.  eh.  71,  §  20,  30. 

There  is,  says  Mr.  Blackstone,  "  one  disadvantage  which  attends  this  ac- 
tion ;  viz.  that  the  defendant  is  herein  permitted  to  wage  his  law,  that  is,  to 
exculpate  himself  by  oath,  and  thereby  defeat  the  plaintiff  of  his  remedy  : 
•which  privilege  is  grounded  on  the  confidence  originally  reposed  in  the 
bailee  by  the  bailor,  in  the  borrov/er  by  the  lender,  and  the  like  :  from 
whence  arose  a  strong  presumptive  evidence,  that  in  the  plaintiff's  own 
opinion  the  defendant  was  worthy  of  credit.  For  this  reason  the  ac- 
tion itself  is  of  late  much  disused  in  England,  and  has  given  place  to  the 
action  of  trover;"  but  the  wager  of  law  being  entirely  unknown  in  practice, 
in  Virginia,  even  if  it  be  not  obsolete,  the  action  of  detinue  for  slaves  and 
other  property  of  peculiar  value  has  become  very  common  with  us,  for  which 
reason  it  demands  the  peculiar  attention  of  the  student. 

The  action  of  trover  and  conversion  was  in  its  original  an  action  of  tres- 
pass on  tliG  case  to  recover  damages  against  such  person  as  had  found 
"  another's  goods,  and  refused  to  deliver  them  on  demand,  but  converted 
them  to  his  own  use  ;  from  which  finding  and  converting  it  is  called  an  ac- 
tion of  trover  and  conversion.  Tlic  freedom  of  this  action  from  wager  of 
law,  and  the  less  degree  of  certainty  requisite  in  describing  the  goods,  gave 
it  so  considerable  an  advantage  over  the  action  of  detinue,  that  by  a  fiction 
of  law,  actions  of  trover  were  at  length  permitted  to  be  brought  against  any 
man  who  had  in  his  possession  by  any  means  whatsoever  the  personal  goods 
of  another,  and  sold  them  or  used  them  v.ithout  the  consent  of  the  owner, 
or  refused  to  deliver  them  when  demanded.  The  injury  lies  in  the  conver- 
sion :  for  any  man  may  take  the  goods  of  another  into  possession,  if  lie 
finds  them  ;  but  no  finder  is  allowed  to  acquire  a  property  therein,  unless 
the  owner  be  for  ever  unknow  n  :  and  therefore  he  must  not  convert  them  to 
his  own  use,  which  the  law  presumes  him  to  do,  if  he  refuses  to  restore 
them  to  the  owner:  for  which  reason  such  refusal  alone  \s,  prima  facie, 
Rufrici(int  evidence  of  a  conversion.  The  fact  of  the  finding,  or  trover,  is 
therefore  now  totally  immaterial  :  for  the  plaintiff  needs  only  to  suggest  (as 
words  of  form)  that  he  lost  such  goods,  and  that  the  defendant  found  them  : 
and  jf  Ue  proves  that  the  goods  are  his  property,  and  that  the  defendant  had 
them  in  his  possession,  it  is  sufTicient.  But  a  conversion  must  be  fully  pro- 
ved :  and  then  in  this  action  the  plaintiff  shall  recover  damages,  equal  to 
the  value  of  the  thing  converted,  but  not  the  thing  itself;  which  nothing 
will  recover  but  an  action  of  detinue  or  replevin." 

To  this  scanty  account  of  the  action  of  trover,  extracted  from  the  work 
of  Mr.  Blackstone,  I  take  leave  to  subjoin  some  farther  views  which  its  im- 
portance demands. 


CHAP.  G.]  TROVER.  8 


n 


The  action  of  detinue,  as  \vc  have  seen,  is  given  to  enable  the  owner  of 
property  to  recover  the  specific  tiling,  where  from  any  cause  he  prefers  the 
property  in  specie,  to  a  recovery  of  damages  in  lieu  of  it.  In  many  instan- 
ces, however,  this  is  unimportant, — in  others  it  would  be  to  the  owner's  dis- 
advantage, (as  where  the  property  is  injured,)  and  in  others  it  would  be 
impracticable,  as  where  it  has  been  lost  or  destroyed,  or  eloigned  by  the  de- 
fendant, and  is  no  longer  in  his  possession.  In  these  instances  the  action 
of  trover,  in  which  damages  are  recovered  for  the  conversion,  furnishes  the 
redress. 

This  action  differs  essentially  in  its  character  from  an  action  of  trespass 
de  bonis  asportalis.  The  action  of  trespass  only  lies  where  there  is  a  tort  ; 
the  action  of  trover  in  strictness  supposes  the  defendant  to  have  come  to 
possession  without  wrong ;  and  though  even  where  a  trespass  has  been 
committed,  the  plaintiff  may  waive  it  and  bring  trover,  yet  this  waiver  is  in 
such  case  implied,  and  the  trespass  is  put  out  of  the  question. 

An  action  of  trover,  though  it  be  itself  an  action  on  the  case,  must  also 
be  distinguished  from  an  action  of  trespass  on  the  case  for  negligence.  As 
where  a  carrier  delivered  goods  entrusted  to  him  to  the  wrong  person,  here 
was  a  conversion  by  an  act  done,  and  trover  was  maintained  :  but  where  he 
lost  the  goods,  trover  would  not  lie,  and  the  injured  party  was  driven  to  his 
action  on  the  case  ;  for  here  there  was  a  mere  omission.  Lastly,  there  is  a 
marked  distinction  between  detinue  and  trover.  In  detinue  the  plaintiff  af- 
firms the  property  to  be  still  in  him,  and  he  demands  its  return.  If,  there- 
fore, pendente  lite,  the  defendant  sells  it,  the  purchaser  acquires  no  title 
thereby.  If  it  dies  pendente  lite,  it  is  the  plaintiff's  loss,  for  it  dies  his; — 
though  the  defendant  may  be  liable  in  the  shape  of  damages  for  the  hires  or 
profits,  and  if  the  death  came  by  reason  of  the  detention,  perhaps  also 
for  the  value  itself.  But  in  trover  the  plaintiff,  though  he  assert  a  claim  to 
the  ])roperty  itself,  waives,  by  that  form  of  action,  any  further  right  to  it, — 
admits  that  the  property  has  been  converted,  and  seeks  only  to  be  indemni- 
fied for  the  loss  he  has  sustained  by  the  conversion.  If,  indeed,  it  can  be 
returned  in  specie,  and  of  undiminished  value,  and  he  accepts  it,  the  jury 
then  find  damages  only  for  the  detention.  But  the  principle  of  the  action 
seems  to  be  as  above  stated.  For  the  court  formerly  would  not  compel  the 
plaintiff  to  take  his  property  back  and  relinquish  his  action.  1  Wils.  23- 
(Sed  vide,  3  Bur.  lo(i4.)  It  was  deemed  the  defendant's  own  folly  and 
wrong,  either  to  convert  another's  property  to  his  own  use,  or  to  refuse  to 
deliver  it  up  when  demanded.  By  such  acts  he  uses  and  treats  the  proper- 
ty as  his  own,  and  therefore  the  owner  may  justly,  under  such  circumstan- 
ces, consider  the  title  as  changed  by  the  wrong,  and  assert  his  claim  only 
for  compensation.  The  effect  of  these  principles  upon  the  action  is  cor- 
respondent: for  a  sale  even  pendente  lite  vests  a  title  in  the  purchaser,  and 
the  original  owner  cannot,  after  having  brought  trover  against  A,  maintain 
any  action  for  the  property  against  B,  to  whom  A  may  have  sold  it  or  given 
it.  So',  too,  a  recovery  in  trover  vests  the  property  of  the  goods  in  the  defen- 
dant, if  the  conversion  v/as  permanent,  and  the  verdict  covers  their  value, 
though  not  otherwise.  4  Starkie,  1507.  Str.  1078.  On  this  principle,  if 
the  property  dies,  it  dies  the  defendant's,  and  it  is  no  loss  to  the  plaintiff  if 
he  proves  an  anterior  conversion,  for  thereby  the  property  was  changed. 
See  Gill.  348,  349.  But  the  time  of  conversion  gives  the  date  to  which  the 
action  relates,  and  that  also  at  which  the  title  is  changed,  so  that  if  it  dies 
before  conversion,  the  loss  is  the  original  owner's. 

The  action  of  trover  is  applicable  from  its  c-iaractcr,  to  a  great  variety  of 
cases.  By  it  the  validity  of  sales  is  tried  ;  for  a  vendee,  if  he  conceives  his 
purchase  to  be  complete,  may  maintain  it  against  the  vendor,  if  he  refuses 
to  give  up  the  article  sold ;  or  the  claimant  under  a  bill  of  sale  may  main- 


86  TROVER.  [  BOOK  3. 

tain  it  either  against  a  sheriff  who  sells  the  property  under  an  execution 
without  bond  of  indemnity,  supposing  the  bill  of  sale  is  fraudulent; — or 
an-ainst  the  creditor  in  the  execution  where  the  proceeds  of  such  sale  have 
come  to  his  hands,  or  he  has  made  the  sherifi's  act  his  own,  by  givingbond 
of  indemnity;  2  Str.  996; — or  the  owner  may  maintain  the  action  against 
a  prior  purchaser  where  he  can  shew  that  the  prior  purchase  was  fraudulent 
and  void  as  to  him.  By  this  action  the  right  of  stoppage  in  transitu  may 
be  tried.  So,  also,  the  right  of  lien  ;  for  though  the  plaintiff  hath  the  right 
of  property,  yet  the  defendant,  if  an  innkeeper  or  carrier,  may  justily  a  de- 
mand and  refusal,  by  shewing  that  he  had  a  right  to  retain  the  property  un- 
til he  was  paid  those  demands  for  which  the  law  gives  them  respectively  a 
lien.  Pawnees,  factors,  attorneys,  tradesmen,  and  others,  may  also  defend 
themselves  in  trover  upon  the  like  ground,  and  the  validity  of  the  defence, 
either  in  point  of  law  or  fact,  thus  conies  directly  in  question.  It  may  here 
be  observed,  however,  in  general  terms,  that  this  right  of  lien  being  admit-  _ 
ted  for  the  benefit  of  trade,  is  confined  very  much  in  its  operation  to  that ; 
thouiih  we  are  told  by  Lord  Mansfield  that  of  late  years  courts  lean  in  favor 
of  itfand  admit  it  not  only  in  cases  of  express  contract  and  where  it  is 
to  be  implied  from  the  usage  of  trade,  but  also  in  cases  of  factors,  and 
wherever  it  may  be  fairly  implied  from  the  dealing  between  the  parties.  4 
IBurr.  2321.  Liens  are  therefore  either  express,  as  in  case  of  a  pawn,  or 
implied,  as  that  which  the  law  gives  to  an  innkeeper  on  the  horse  or  other 
property  of  a  guest  for  the  amount  of  his  bill. 

Liens  are  also  general  or  special.  Thus  a  factor  has  a  general  lien  up- 
on goods  assigned  to  him  not  only  for  what  is  due  for  those  goods,  but  for 
the  balance  of  a  general  account,  and  may  retain  them  accordingly.  2  Burr.  ■ 
930.  Cow.  25 L  2  T.  R.  488.  2  E.  222.  7  John.  C.  284.  But  a  man- 
ufacturer has  a  lien  on  the  goods  entrusted  to  him  to  manufacture,  only  for 
the  j)rice  of  the  work  done  to  those  goods  themselves,  unless  the  usage  of 
the  trade  is  proved  to  be  otherwise,  lor  that  may  create  a  general  lien.  1 
Atk.  2'j7.  And  so  may  the  particular  mode  of  dealing  between  the  parties 
create  a  general  lien  in  cases  were  otherwise  the  lien  would  be  but  special. 
But  this  doctrine  of  a  general  lien  is  not  now  favored  by  the  courts.  6  E. 
519.  7  E.  224.  Thus  the  lien  of  an  innkeeper  on  the  goods  or  horse 
of  his  guest,  is  special,  and  does  not  extend  to  bills  due  to  him  by  the  guest 
on  former  occasions.  So  the  lien  of  a  common  carrier  is  only  a  special 
lien,  unless  the  usage  of  trade  or  the  mode  of  dealing  should  convert  it  into 
a  general  one  ;  and  the  lien  of  a  tailor  on  clothes  made,  of  a  dyer  on  goods 
dyed,  and  of  manufacturers  generally,  is  of  the  same  nature.  An  attorney, 
however,  has  a  lien  for  the  general  balance  of  his  fees  on  his  client's  papers 
which  come  to  his  hands  in  the  course  of  business.  1  M.  &S.  535.  But 
persons,  other  than  attorneys,  to  whom  a  deed  or  paper  is  delivered  to  do 
any  work  upon,  have  a  lien  on  that  deed  only  for  the  price  of  the  work, 
and  not  on  other  muniments  of  the  same  party.     4  Taun.  807. 

In  the  case  of  the  innkeeper,  he  has  a  lien  on  a  horse  brought  to  his  inn, 
for  the  price  of  his  keeping,  although  the  owner  knew  nothing  of  it.  3 
Esp.  58 1.  But  in  none  of  these  cases  can  th.e  party  claiming  the  lien,  sell 
the  goods.     His  |)owcr  is  only  to  retain   them  till  he  is  paid. 

Nor  is  the  action  of  trover  very  limited  as  to  the  nature  of  the  property 
for  which  it  may  be  brought:  for  it  will  lie  for  a  slave,  a  horse,  a  bond,  a 
bank  note,  wheat,  or  other  like  article,  though  not  in  a  bag  or  otherwise  dis- 
tinguishable from  other  wheat,  &.c.  It  will  even  lie  for  articles  which  were 
once  part  of  the  freehold,  bia  which  have  been  severed  from  it  so  as  to  ac- 
quire the  character  of  j)ersonalty  ; — as  l"or  coals  dug  and  thrown  up  from  a 
pit:  if  they  be  taken  away  by  another,  trover  lies.  In  short,  it  lies  in  gen- 
eral for  any  personal  property  in  which  the  plaintiff  has  a  general  or  special 


CHAP.  6.]  TROVER.  87 

property.  But  this  general  or  special  property  he  must  have,  together  with 
a  right  to  the  immediate  possession,  (7  T.  II.  9,)  for  if  his  right  is  in  rcver- 
sio7i,  his  remedy  is  an  action  on  the  case. 

The  general  property  will  enable  the  owner  to  maintain  trover  against 
any  person  who  cannot  shew  a  right  to  the  immediate  possession.  Thus 
the  owner  may  recover  from  one  who  took  from  him  his  horse  ;  but  if  he  pawn- 
ed that  horse,  or  if  an  innkeeper  has  alien  on  him  for  a  sum  which  is  un- 
paid, even  the  general  property  will  not  enable  him  to  maintain  this  action 
against  this  special  right  of  possession. 

On  the  other  hand,  he  who  has  only  a  special  property  may  maintain  tro- 
ver against  any  other  than  the  owner,  and  even  against  him  if  he  himself  has 
the  right  of  possession.  2  Taun.  '268.  Thus  every  bailee  may  maintain 
this  action  against  a  third  person  who  converts  the  property  bailed  to  his 
o-wn  use ;  for  the  bailee  is  answerable  over  to  the  bailor.  The  owner,  in- 
deed, may  himself  maintain  the  action  in  such  case,  notwithstanding  his 
'bailment;  for  as  against  a  wrongdoer  he  is  still  considered  as  having  the 
possession  in  law,  and  the  bailee  is  looked  on  as  his  servant.  7.  T.  R.  12. 
2  Saun.  47,  b.  But,  although  there  can  be  but  one  recovery,  and  though, 
indeed,  both  actions  cannot  be  supported  at  the  same  time,  (2  Saun.  47,  c.) 
jet  if  the  bailor  has  not  sued,  the  bailee  may.  In  like  manner,  a  sheriff 
who  has  taken  goods  in  execution,  a  common  carrier,  an  innkeeper  or  factor, 
or  consignee,  may  maintain  the  action,  and  though  in  the  case  of  a  special 
property  the  plaintiff  must  in  general  have  had  possession  or  he  will  fail,^ 
yet  this  rule  is  very  far  from  being  universal.  See  1  Bos,  &  Pul.  47.  2 
Saun.  47,  d. 

,  The  parties  to  the  action  of  trover  depend  upon  the  nature  of  the  title. 
If  there  be  joint-tenants  or  tenants  in  common  of  a  chattel,  they  must 
join  in  an  action  of  trover,  and  if  one  sues  alone,  the  defendant  may  plead 
it  in  abatement,  but  he  can  in  no  other  mode  take  advantage  in  this  action 
of  the  omission ;  and  herein  exists  a  distinction  (hereafter  more  fully  ad- 
verted to)  between  actions  ex  delicto,  and  those  ex  contractu,  for  in  the  lat- 
ter the  error  may  be  taken  advantage  of  at  the  trial,  and  without  plea  in  a- 
batement.  Where  one  of  two  part-owners  sues  and  recovers  for  the  injury 
done  him,  and  the  defendant  fails  to  plead  in  abatement  of  his  action,  the 
other  part-owner  may  afterwards  sue  for  the  injury  done  him,  and  in  this 
latter  case  tlie  defendant  cannot  even  plead  in  abatement  that  there  is  ano- 
ther partner;  for  as  he  omitted  to  plead  it  in  the  first  suit,  it  would  be  un- 
reasonable to  permit  it  in  the  second,  whereby  the  other  joint-owner  would 
be  impeded  in  recovering  his  portion  of  the  damages.  The  joint  interest 
is  indeed  severed,  by  the  verdict  for  several  damages  found  without  objection 
on  the  part  of  the  defendant. 

Where  the  cause  of  action  in  trover  had  its  inception  before  marriage,  but 
its  completion  afterwards,  as  where  the  trover  was  before,  and  the  conver- 
sion after  coverture,  the  husband  may  or  may  not  join  his  wife  in  the  action  ; 
— whore  both  trover  and  conversion  precede  it,  he  must  join  her :  whero 
they  both  are  after  marriage,  he  cannot  join  her;  and  these  doctrines  pro- 
ceed from  the  principles  laid  down  in  a  former  volume  as  to  the  husband's 
rights  in  his  wife's  property.  So  where  the  wife  is  executrix  or  administra- 
trix, she  ought  to  join  in  the  action  of  trover,  whether  the  trover  or  con- 
version, or  both,  were  before  or  after  the  marriage.  On  the  other  hand, 
if  a  woman  before  or  after  marriage  convert  the  goods  of  another,  this  be- 
ing a  tort,  she  and  her  husband  may  both  be  sued ;  for  as  to  the  husband, 
he  is  answerable  for  her  acts;  and  as  for  herself,  she  is  answerable  for  her 
torts  committed  even  after  marriage,  and  may  be  taken  in  execution  for 
the  same,  nor  shall  she  be  discharged  but  upon  payment  of  the  damages, 
unless  it  appear   that  the  plaintiff  and  her  husband  collude  to  keep  her  in 


88  TROVER.  [  BOOK  3. 

prison.  2  Str.  1167,  1237.  1  Wils.  149.  It  is  otherwise,  however,  in 
detinue,  for  that  will  not  lie  against  the  wife  as  well  as  the  husband.  1 
Chitty,  82. 

One  joint-tenant,  or  tenant  in  common,  cannot  suppo'rt  trover  against  his 
comp;inion,  unless  the  latter  has  destroyed  the  chattel.  2  Saun.  47,  f.  g. 
4  E.  121. 

Trover  will  lie  in  Virginia  by  or  against  executors  and  administrators  by  an 
equitable  construction  of  our  law.  See  4  Mun.  130.  1  Gilm.331,  as  to 
the  construction  of  the  64th  section  of  the  Statute  of  Wills. 

Of  the  PleadIxNgs.  First  of  the  declaration.  The  gist  of  this  action, 
as  we  have  seen,  is  the  conversion,  i.  e.  the  defendant's  appropriating  the 
property  to  his  own  use.  The  declaration,  therefore,  after  stating  that  the 
plaintiff  was  possessed  of  the  goods  as  of  his  own  property,  and  that  they 
came  to  the  defendant's  possession  by  finding,  must  set  forth  a  conversion 
by  the  defendant,  without  vvhich  it  is  incurably  faulty  ;  unless,  indeed,  the 
late  statute  of  Jeofails  has  enacted  otherwise  : — a  subject  I  purpose  else- 
where to  examine.  A  time  and  place  for  the  conversion  should  also  be  spe- 
cified, and  there  should  be  some  description  ofthe  nature,  quality,  and  quan- 
tity of  the  goods,  though  of  late  the  former  strictness  on  this  latter  point 
has  been  much  relaxed  ;  for  being  out  of  possession,  the  plaintiflf  cannot 
always  be  very  accurate,  and  to  compel  him  to  enter  into  minutia;,  would 
be  to  deny  him  justice  ;  since  if  he  does  undertake  a  particular  description, 
any  variation  in  the  evidence  will  occasion  his  being  nonsuited.  2  Esp. 
587.  The  time  and  place,  however,  need  not  be  proved  as  laid.  The  value 
of  the  goods  need  not  be  stated.     2  \Vash.  192. 

Where  husband  and  wife  are  plaintiffs,  the  declaration  states  the  con- 
version to  be  to  the  damage  of  the  husband  only,  unless  the  conversion 
was  before  marriage.  1  Salk.  114.  And  so  in  like  case  against  baro7i 
and  feme,  the  conversion  must  be  laid  to  the  use  of  the  husband.  2 
Esp.  588. 

Of  the  plea.  The  general  issue  is,  not  guilty;  for  the  conversion  char- 
ged is  a  tort  or  wrong  done,  which  can  only  be  denied  by  that  plea. 
Under  this  issue  most  defences  may  be  given  in  evidence  ;  yet  several 
special  pleas  are  allowed  ; — as  a  release  ;  the  statute  of  limitations  ;  a 
Ibrmer  recovery  by  the  plaintiff,  in  trover  or  in  trespass,  for  the  same  goods, 
either  against  the  defendant  or  another;  for  the  plaintiff  cannot  have  a 
double  satisfaction,  and  indeed  by  the  recovery  of  damages  the  property 
is  changed,  (2  Str.  1978,)  so  that  afterwards  the  plaintiff  cannot  have  proper- 
ty in  the  goods.  So,  many  things  which  shew  a  right  to  detain  the  goods 
may  be  pleaded  specially,  as  a  right  of  lien  in  a  tavern  keeper  or  carrier, 
though  such  defences  are  also  proper  to  be  given  in  evidence  on  the  gene- 
ral issue. 

The  statute  of  limitations  begins  to  run  from  the  time  of  the  conver- 
sion, for  then,  and  not  till  then,  the  cause  of  action  accrued. 

Of  the  evidence  : — On  the  part  of  \\\g plaintiff .  Possession  in  the  plain- 
tiff is,  in  the  first  instance,  sufi^icient  to  be  proved  on  the  point  of  title,  for 
It  is  prima  facie  evidence  of  property.  7  T.  R.  397.  2  Taun  302. 
4  E.  130.  5  Esp.  11.  83.  But  if  the  defendant  asserts  the  right  of 
property  or  the  right  of  possession,  and  gives  evidence  in  support  of  his 
right,  the  plaintiff  is  put  to  farther  proof  of  title.  See  Salk.  290.  1  T. 
R.  ()o8. 

Having  proved  his  own  right,  the  plaintiff  next  establishes  the  defendant's 
wrong.  As  to  the  alleged  finding,  it  is  imi.iaterial  and  not  traversable ; 
that  is  to  say,  the  defendant  cannot  foil  his  adversary  by  denying  that  he 
found  the  goods.  For  the  conversion  being  the  gist  of  the  action,  he  is 
liable  whether  he  found  them  or  not,  as  if  they  Mcre  delivered  to  him  by 


CHAP.  6]  INJURIES  TO  PERSONALTY.  89 

plaintifl*,  or  were  forcibly  taken  by  himself,  provided  the  conversion  can  be 
proved.  '2Saun.  47,  k.  Now  the  conversion  may  be  supported  either  by 
proof  of  an  unlawful  taking  in  the  first  instance,  or  of  an  illegal  assump- 
tion of  ownership,  or  of  an  illegal  use  or  abuse  of  the  property,  (Willes, 
66.  5  E.  407.  ()  E.  540,)  or  of  a  demand  and  refusal  to  deliver  it.  And 
where  the  plaintiff  cannot  prove  one  of  the  former  of  these  charges,  he 
must  prove  the  last,  which,  though  not  itself  a  conversion,  is  sufficient  ev- 
idence to  justify  the  jury  in  finding  one,  unless  it  is  rebutted  bv  evidence 
justifving  the  refusal.  3  Bur.  U-23.  2  Esp.  589.  6  E.  540.  'i  Esp.  R. 
83.     S  Camp.  215.     5  Barn.  &  A.  247.     1  Camp.  409. 

Evidence  for  the  defendant.  This  depends  upon  the  cliaracter  of  the  de- 
fence which  he  sets  up,  and  must  always  of  course  be  adapted  to  it.  To 
what  has  been  already  said  on  the  subject  of  the  defence,  I  will  add  there- 
fore that  the  defendant  may,  under  the  general  issue,  give  evidence  of  the 
title  to  the  property  being  in  himself,  or  even  in  another;  or  he  may  shew 
that  though  the  title  is  in  the  plaintiff,  the  right  to  hold  possession,  when 
the  demand  and  refusal  occured,  was  in  him  or  some  person  under  whom 
he  claims.  As  where  he  holds  the  goods  as  a  pawn,  or  has  hired  them  for 
a  time  not  yet  expired,  or  even  has  found  them,  and  the  plaintiff  when  he 
demanded  them  did  not  prove  his  right  of  property.  So  he  may  prove 
that  the  articles  were  fixed  to  the  freehold  by  himself  as  a  lessee,  for  the 
convenience  of  trade,  and  that  he  had  a  right  to  remove  them  ;  or  that  the 
goods  were  taken  by  him  under  an  execution  or  distress  for  rent  to  which 
they  were  liable  ;  or  that  they  were  detained  by  him  by  virtue  of  a  lien  he 
had  upon  them,  and  any  other  matter  which,  admitting  the  plaintiff's  right 
of  property,  will  shew  his  own  superior  right  of  possession. 

The  verdict  in  this  action  is  for  damages,  which  damages  are  measured 
by  the  value  of  the  property  at  the  time  of  the  conversion.*  The  court, 
however,  in  modern  times,  have  permitted  the  defendant  to  bring  the  goods 
into  court,  or  if  they  are  bulky,  to  deliver  them  to  the  plaintiff,  and  then  the 
damages  given  are  only  for  the  detention.  3  Burr.  1364.  The  plaintiff, 
if  he  recovers,  has  a  judgment  for  his  costs,  provided  the  subject  in  con- 
troversy is  of  the  value  of  $20.  If  it  be  not,  he  will  be  nonsuited,  since  of 
such  controversies  a  justice  of  peace  has  jurisdiction.  1  R.  C.  ch.  71,  § 
20,  30. 

"As  to  the  damage,"  says  Mr.  Blackstone,  "that  may  be  offered  to  things 
personal,  while  in  the  possession  of  the  owner,  as  hunting  a  man's  deer, 
shooting  his  dogs,  poisoning  his  cattle,  or  in  anywise  taking  from  the  value 
of  any  of  his  chattels,  or  making  them  in  a  worse  condition  than  before, 
these  are  injuries  too  obvious  to  need  explication.  I  have  only  therefore  to 
mention  the  remedies  given  by  the  law  to  redress  them,  which  are  in  two 
shapes;  by  action  of  trespass  vi  et  annis,  where  the  act  is  in  itself  immedi- 
ately injurious  to  another's  property,  and  therefore  necessarily  accompanied 
with  some  degree  of  force  ;  and  by  special  action  on  the  case,  where  the 
act  is  in  itself  indifferent,  and  the  injury  only  consequential,  and,  therefore, 
arising  without  any  breach  of  the  peace.  In  both  of  which  suits  the  plain- 
tiff shall  recover  damages,  in  proportion  to  the  injury  which  he  proves  that 
his  property  has  sustained.  And  it  is  not  material  whether  the  damage  be 
done  by  the  defendant  himself,  or  his  servants  by  his  direction  ;  for  the  ac- 
tion will  lie  against  the  master  as  well  as  the  servant.  And,  if  a  man  keeps 
a  dog  or  other  brute  animal,  used  to  do  mischief,  as  by  worrying  sheep  or 
the  like,  the  owner  must  answer  for  the  consequences,  if  he  knows  of  such 
evil  habit." 

"Where  tlie  defendant  had  fraudulently  got  possession  of  tlie  plaintiff's  diamond,  and  woulil  not 
produce  ii  that  it  might  be  valued,  the  highest  price  was  directed  to  be  given,  1  Sir.  605.  Set  also 
SJohn.C.C.  103,  lie.    8  Bur.  1363.    3  Bl.  Rep.  90JJ. 

VOL.  3—12 


90  INJURIES  TO  PERSONALTY.  [  uooK  3, 

The  foregoing  short  and  unsatisfactory  paragraph  is  all  that  the  commen* 
tator  o-ives  us,  in  relation  to  the  actions  of  trespass,  and  trespass  on  the  case, 
for  injuries  received  in  reference  to  things  personal.  AVe  must  therefore 
push  our  inquiries  farther,  by  the  aid  of  other  lights. 

The  actions  of  detinue  and  trover,  which  we  have  been  just  considering, 
though  they  embrace,  according  to  ihe  modern  practice,  not  only  those  ca- 
ses ni  which  the  party  comes  lawfully  into  possession,  but  those  also  in 
which  he  torliously  acquires  it,  if  the  phiinliff  chooses  to  waive  the  trespass  , 
yet,  in  their  original,  they  were  doubtless  considered  as  confined  to  cases 
in  which  the  original  possession  was  obtained  without  wrong.  But  where 
a  trespass  was  committed  by  forcibly  taking  away  the  goods  and  chattels  of 
the  party,  his  remedy  was  an  action  of  trcspsLi^s  de  bonis  asportatis,  in  which 
he  recovered  damages  to  the  value  of  his  goods,  unless  he  had  regained  the 
possession. 

There  are  then  three  kinds  of  actions  to  be  considered  in  reference  to 
those  wrongs  which  affect  the  personal  property  of  a  party,  viz.: 

1.  The  action  of  trespass  de  bonis  asportatis. 

2.  The  action  of  trespass  vi  et  armis  lor  an  immediate  injury  to  the  pro- 
perty. 

3.  The  action  of  trespabs  ou  the  ca?<^  for  a  consequential  injury. 

Before  we  proceed  to  consider  these  three  species  of  actions,  I  must  re- 
mind the  student  of  the  distinction  already  noticed  in  the  last  chapter,  be- 
tween direct  and  consequential  injuries  :  a  distinction  which  it  is  proper  to 
bear  in  mind,  though  it  has  been  rendered  of  less  importance  than  formerly 
by  the  act  1  R.  C.  ch.  108,  §  i03.  That  act  provides,  that  no  judgment,  af- 
ter a  verdict  of  twelve  men,  shall  be  arrested  or  reversed  for  any  mistake  or 
misconception  of  the  form  of  action ;  a  clause  which  we  shall  have  occa- 
sion to  consider  hereafter  more  particularly. 

We  proceed  now  to  speak,  first,  of  the  action  of  trespass  de  bonis  aspor- 
tatis. This,  as  we  have  said,  is  appropriate  where  the  goods  of  a  party 
have  been  tortiously  taken  from  his  possession,  whether  they  have  been  re- 
turned to  him  or  not ;  though  if  they  have  been  returned,  the  plaintiff  is 
not  entitled  to  recover  their  full  value,  as  he  may  do  whore  tJiey  iiave  been 
used  or  consumed,  or  eloigned  by  the  defendant,  or  are  yet  retained  in  his 
j)ossession.  Where  he  does  recover  a  verdict  for  their  value,  it  operates  a 
change  of  property,  as  in  the  action  of  trover,  and  the  defendant  according- 
ly thereby  acquires  a  perfect  title  to  them.  4  Starkie,  1281,  1507.  For 
it  would  be  a  gooil  plea  in  a  subsequent  action  of  trover,  that  the  plaintiff 
had  received  satisfaction. 

As  the  requisites  and  proceedings  in  this  action  correspond  very  much 
with  those  of  the  action  of  trespass  for  injury  to  personal  property,  we  shall 
proceed,  secondly,  to  the  consideration  of  them  together,  taking  care  to  mark 
out  those  instances  in  which  there  is  a  difference  between  the  two. 

Tiie  action  of  trespass  to  recover  damages  for  an  injury  to  personal  pro- 
perty, lies  where  the  property  has  been  injured  by  the  immediate  act  of  the 
flefeudaiit ;  and  i>oth  in  this  and  in  the  action  dc  bonis  asportatis  his  essen- 
tial  that  the  plaintiff  at  the  time  of  the  injury  should  have  had  an  actual  or 
constructive  possession,  and  also  a  general  or  (|ualified  property  in  the  goods. 
1  T.  11.  480.  4  T.  R.  490.  7  T.  R.  9.  The  absolute  or  general  owner, 
if  he  is  entitled  to  immediate  possession,  may  indeed  maintain  the  action 
though  he  never  had  the  actual  possession,  for  the  general  property  draws 
to  it  a  constructive  possession.  Hence,  executors  and  administrators  may 
maintain  trespass  for  an  injury  done  to  the  goods  after  the  testator's  death, 
tliou::j!i  before  probate  ;  and  so  may  a  legatee  after  the  executor  has  assent- 
ed to  his  legacy,  for  a  trespass  committed  before  such  assent.  1  Chitty, 
107.     But  if  the  general  owner  has  parted  with  the  possession,  and  the 


CHAP.  6.]  INJURIES  TO  PERSONALTY.  91 

bailee  have  a  right  to  use  the  thing,  the  consiructive  possession  is  rebutted, 
and  he  can  no  longer  maintain  trespass,  though  he  retain  the  right  of  pro- 
perty :  for  he  has  not  an  immediate  right,  but  only  a  right  in  reversion,  and 
vvheij  that  is  the  case  the  owner  cannot  maintain  trespass  for  an  injury  done 
to  the  property  even  by  a  third  person,  but  is  driven  to  his  action  on  the 
case.*  Still  less  can  he  maintain  trespass  against  the  bailee,  unless,  indeed, 
the  thing  be  forcibly  destroyed,  in  which  event  it  seems  that  it  will  lie.  1 
Chitly,  ]63.  The  bailee  himself  may  also  bring  trespass  for  taking  away  or 
injuring  the  goods,  because  he  is  liable  over  to  the  owner;  and  so  may  the 
finder  of  personal  property,  and  even  the  illegal  holder  of  it,  maintain  this 
action  against  all  persons  except  the  owner  or  a  person  entitled  to  the  pos- 
session. 

The  necessity  of  a  right  of  property  and  possession  creates  the  line  of 
distinction  as  to  the  property  for  which  trespass  lies.  For  it  may  be  main- 
tained for  all  things  in  which  a  man  can  by  law  have  a  property,  though  it 
be  only  a  qualified  property.  In  relation  to  animals /evcB  naturcB,  however, 
it  should  be  shewn  by  the  declaration  that  they  were  either  reclaimed  or 
dead,  which  is  not  necessary  as  to  tame  animals.  Yet  if  a  hare  or  rabbit 
be  killed  on  the  land  of  another,  and  the  person  killing  it  carries  it  away, 
the  owner  of  the  land  may  support  trespass  for  taking  it,  for  he  has  a  local 
property  ratione  soli,  and  as  soon  as  it  was  killed,  that  property  became  ab- 
solute. So  as  to  fish,  &c.  And  if  game  be  started  on  A's  land,  and  he 
pursues  it  to  the  land  of  B,  where  another  person  kills  it,  the  property  in  the 
game  is  in  A,  for  the  local  property  was  continued  in  him  by  the  pursuit. 
In  actions  of  this  nature,  however,  were  the  injury  is  accompanied  by  a 
trespass  on  the  land ,  it  is  advisable  to  set  out  that  also,  to  remove  all  doubt  as 
to  the  propriety  of  the  action. 

The  action  of  trespass  is  generally  sustainable  in  no  case  where  the  de- 
fendant came  lawfully  into  possession.  Where  he  does  so,  the  owner's  re- 
medy is  usually  trover  or  detinue.  As  where  a  trespasser  delivers  the  goods 
to  a  third  person,  that  person  is  not  liable  in  this  action.  Yet  this  rule  is 
not  universal ;  for  if  a  bailee,  or  a  joint-tenant  or  tenant  in  common,  de- 
stroy the  property,  he  is  liable  in  trespass  :  and  in  other  cases,  though  the 
original  taking  be  lawful,  yet  if  the  taker  be  guilty  of  any  abuse,  it  may 
render  him  a  trespasser  ab  initio,  and  liable  in  this  action.  1  Chitty,  172, 
186.  But  if  the  defendant  came  unlawfully  into  possession,  he  is  liable, 
as  where  he  has  wrongfully  distrained  for  rent; — or  distrained  what  is  not 
distrainable  : — and  this,  though  there  be  no  wrongful  intent, — as  where,  on 
an  execution  against  A,  the  sheriff  by  mistake  takes  the  goods  of  B,  he  is 
liable. 

Of  the  declaration.  The  declaration  contains  a  concise  but  direct  charge 
or  statement  of  the  injury  complained  of,  and  should  always  allege  that  it 
was  done  vi  et  armis,  and  against  the  peace  of  the  commonwealth.  It  al- 
so states  a  time  and  place  where  the  injury  was  committed,  though  these 
are  generally  immaterial  and  not  traversable  in  actions  of  trespass  to  per- 
sonal property.  It  also  usually  sets  forth  the  property  and  its  value,  but 
herein  this  distinction  is  to  be  observed:  where  the  action  is  de  bonis  aspor- 
tatis,  the  properly  should  be  described,  though  a  charge  of  taking  "  a  quan- 
tity of  poultry,  to  wit,  geese,  ducks,  &c."  has  been  held  sufficiently  certain. 
4  Mun.  251.  The  reason  for  requiring  a  description  of  the  goods  taken,  is, 
that  otherwise  the  defendant  might  not  be  able  to  avail  himt^elf  of  a  justifi- 
cation which  he  would  otherwise  have,  and  also  because  without  such  de- 
scription the  record    would  not  afford   conclusive   evidence  of  satisfaction 

*Tlnis  if  the  property  has  been  converted,  the  reversioner  must  bring  frover,  not  trespass.  If  it  has 
been  iMJnrefi,  he  must  bring  case  for  conseqntntiaL  damage;  for  all  injnries  are  regarded  as  conae- 
qiipii'ial  only  as  respects  the  reversioner. 


92  INJURIES  TO  PERSONALTT.  [  book  3. 

already  recovered  for  the  injury,  as  a  bar  to  another  suit  for  the  same  mat- 
ter. iSut  where  the  action  is  for  an  injury  to  the  goods,  the  same  strictness  is 
not  required.  There  is  one  thing,  liowever,  essential,  that  it  should  be  sta- 
ted that  the  goods  were  of  the  property  of  the  plaintiff,  or  that  he  was  pos- 
sessed of  them.  4  Mun.  251.  Theomission  of  this  will  be  fatal  after  ver- 
dict, unless,  indeed,  it  be  cured  by  tiie  late  act  of  Jeofails.  1  Chitty,  3(55. 
2  Saun.  379,  n.  13.  It  does  not  seem  necessary  to  state  the  price  or  value 
of  the  goods  in  trespass  de  boiiis  asporlatis ;  for  even  in  trover  it  has  been 
held  unnecessary.     2  Wash.  192. 

I  have  said  the  charge  should  be  direct.  If  it  be  by  way  of  recital,  as 
"  Whereas  the  defendant  did,  &,c."  it  is  erroneous;  though  after  a  verdict  it 
will  now  be  cured  by  the  late  act  of  Jeofails. 

In  trespass  de  bonis  asportatis,  if  the  property  be  inanimate,  the  dcclara- 
ration  charges  that  the  defendant  "  took  and  carried"  it  away.  If  the  pro- 
perty be  animate,  the  terms  "  led"  or  "  drove"  are  substituted  for  "  carried," 
according  as  the  one  or  other  is  most  appropriate. 

Of  the  plea.  The  general  issue  in  this  action  is  "not  guilty,"  under 
which  the  defendant  may  give  in  evidence  the  want  of  title  in  the  plaintiff, 
or  any  matter  which  directly  controverts  the  truth  of  the  charge.  But  mat- 
ter of  juslification  must  always  be  pleaded  specially;  for  evidence  of  justi- 
fication, so  far  from  supporting  the  plea  of  not  guilty,  which  implies  a  deni- 
al of  the  taking,  in  fact  admits  it,  and  the  allegata  and  the  probata  would 
thus  be  in  conflict,  which  would  be  against  an  invariable  rule.  Thus  the 
defendant  may  plead  that  he  took  and  impounded  the  cattle  damage-/ca6Y/nf  ; 
or  took  the  goods  for  a  distress,  or  by  execution,  or  any  other  matter  which, 
admitting  the  title  of  the  plaintiff,  and  the  taking  of  the  defendant,  shews 
a  legal  justification  of  his  conduct. 

The  defendant  may  also  plead  a  former  recovery, — accord  and  satisfac- 
tion,— the  statute  of  limitations, — or  a  release.  And  a  release  to  one  will 
avail  all  who  were  jointly  concerned  in  the  same  trespass.  So,  too,  of  a 
satisfaction  by  one.  2  H.  &  M.  38.  And  so  of  a  former  recovery  against 
one  of  several  joint  trespassers.     2  H.  St  M.  355. 

Of  the  evidence.  If  separate  actions  are  brought  against  joint  trespass- 
ers, one  may  be  a  witness  for  the  other;  for  the  verdict  in  one  suit  is  no  ev- 
idence in  the  other.  1  Wash.  187.  If  several  be  sued  jointly,  and  nothing 
is  proved  against  one,  he  may  be  admitted  as  a  witness  for  the  others. 

On  the  part  of  the  defendant  an  acknowledgment  (not  on  oath,  on  the 
trial,)  by  a  person  not  party  to  the  cause,  that  he  committed  the  trespass,  is 
not  admissible  to  exculpate  the  party  to  the  action.     4  Mun.  458. 

As  to  justification  under  process  of  execution,  there  is  a  difference  where 
the  defendant  is  sued  by  a  stranger  to  the  execution,  and  where  he  is  sued 
by  the  defendant  in  the  original  action.  In  the  first  case  he  must  shew  a 
judgment  as  well  as  execution  ;  for  the  stranger  is  not  privy  to  the  judg- 
ment. In  the  second  case  he  need  only  shew  the  execution  itself  for  the 
plaintiff  is  conusant  of  the  judgment.     5  Bur.  2()31.     Lord  Ray.  733. 

Of  the  verdict,  cS-c.  The  verdict  in  trespass  is  for  so  much  as  will  com- 
pensate the  jdaintiff  for  his  damages,  and  he  can  ne\er  recover  more  than 
he  has  laid  in  his  declaration.  If,  therefore,  the  verdict  is  for  more,  lie  must 
release  the  excess. 

The  jury  may  acquit  one  of  the  defendants  of  the  trespass,  and  find 
another  guilty  :  but  in  a  joint  action  (if  trespass,  the  jury  cannot  sever  in 
dnma^rrs.  The  doctrine  on  this  subject  has  however  been  already  stated  in 
treating  of  the  action  of  assault  and  battery. 

In  trespass  against  two  defendants,  if  one  be  found  guilty  and  the  other 
bo  acquitted,  a  new  trial  cannot  be  granted  on  the  motion  of  the  convicted 
defendant.     I  Wash.  322.     In  this  case,  liowever,  they  had  pleaded  jointly. 


i 


CHAP.  6.]  INJURIES  TO  PERSONALTY.  93 

In  all  actions  of  trespass  in  reference  to  personal  property,  if  the  jury 
find  under  $G.66,  (in  whatever  court  the  suit  may  be,)  the  phiintiflfshaii  not 
recover  more  costs  than  damages,  unless  the  court  shall  be  satisfied  and 
shall  certify  upon  the  record  that  the  trespass  was  wilful  or  malicious.  1 
R.  C.  ch.  J28,  §21. 

Let  us  now  proceed,  thirdly,  to  the  action  of  trespass  on  the  case.  We 
have  already  seen  that  to  prevent  a  failure  of  justice  where  the  forms  of 
writs  already  provided  did  not  embrace  the  case  of  a  suitor,  it  was  enacted 
in  the  time  of  Edward  the  1st,  that  a  writ  should  be  iramed  by  consent  of 
the  learned  in  the  law,  adapted  to  his  particular  necessities.  Hence,  the 
great  variety  of  writs  of  trespass  on  the  case.  Some  of  thes^e  were 
framed  so  as  to  embrace  the  case  of  contracts  where  the  amount  demanded 
was  unascertained  and  not  secured  by  specialty:  such  are  actions  on  the 
case  sur  assumpsit.  Others  were  intended  to  give  relief  for  injuries  to  real 
property  :  such  is  the  action  of  trespass  on  the  case  for  a  nuisance  to  lands, 
or  for  disturbance  in  the  enjoyment  of  any  right  connected  with  the  owner- 
ship of  incorporeal  heraditaments.  Others  were  intended  to  give  relief  or 
afford  a  remedy  for  injuries  to  the  person  or  to  personal  property,  not  a- 
mounting  to  trespasses  :  such  are  the  actions  of  trespass  on  the  case  against 
a  surgeon  or  attorney  for  neglect  in  their  respective  duties,  or  against  the 
keeper  of  a  tierce  dog,  by  which  the  injured  party  is  bitten,  or  his  sheep  or 
cattle  injured  or  killed.  Besides  these,  there  are  a  great  variety  of  other  ca- 
ses arising  out  of  human  affairs,  in  reference  to  persons  or  their  property, 
which  it  would  be  difficult  completely  to  enumerate.  Of  the  remedy  as  ap- 
plicable to  cases  of  injury  to  persons  or  property,  it  behoves  us  now  to  speak  ; 
and   perhaps  it  may  not  be  amiss  to  observe, 

That  in  all  cases  of  contracts  by  specialty,  as  bonds,  covenants,  and  such 
like. 

And  in  all  cases  of  injuries  to  the  person  or  to  personal  property,  accom- 
panied by  force, 

The  law  has  provided  specific  and  appropriate  remedies. 

But  in  all  cases  of  breach  of  contract  not  evidenced  by  specialty,  and  of 
i-njuries  to  property  or  the  personal  rights  of  individuals  not  accompanied 
with  force,  the  action  on  the  case  is  the  proper  remedy.  Some  of  these 
actions  on  the  case,  however,  from  their  frequency  and  importance,  are 
treated  of  under  separate  heads;  as  the  action  on  the  case  for  slander,  or 
for  a  malicious  prosecution,  or  for  trover  and  conversion,  of  which  we  have 
already  spoken,  and  the  action  on  the  case  sur  assumpsit  in  all  its  various 
forms,  of  which  we  shall  hereafter  speak.  At  present  we  shall  confine  our- 
selves to  those  wrongs  which  are  unaccompanied  by  force,  but  do  not  fall 
within  either  of  the  foregoing  descriptions. 

The  action  of  trespass  on  the  case,  then,  lies  where  the  plaintiff  has  sus- 
tained an  injury  consequential lif  from  the  act  of  the  defendant,  or  from  his 
culpable  omission.  Thus,  if  the  defendant  throw  a  log  in  the  public  high- 
way, and  the  plaintiff  in  the  night  falls  over  it  and  is  hurt,  he  may  sue  for 
the  injury  thus  consequential  upon  the  act  of  the  defendant.  So  lor  omis- 
sion : — if  the  plaintiff  loses  his  suit  by  the  neglect  of  counsel  to  file  a  decla- 
ration, he  may  maintain  this  action.  In  all  these  cases,  however,  there 
must  be  some  fault  in  the  defendant,  either  in  doing  what  he  had  no  right 
to  do,  or  in  not  doing  what  he  was  bound  to  do,  or  in  omitting  that  care  in 
doing  a  lawful  act  to  which  every  man  is  bound. 

There  must  not  only  be  a  wrong  on  the  part  of  the  defendant,  but  a  spe- 
cial damage  to  the  plaintiff,  else  it  is  injuria  absque  damno,  which  will  not 
support  an  action.  Thus  a  nuisance  in  the  public  highway  is  no  cause  of 
action  to  any  individual  until  he  has  himself  sustained  some  injury  from  it, 
though  the  person  guilty  of  the  nuisance  would  be  subject  to  punishment 


i>4  INJURIES  rO  r ERSONALTY.  [  book  3. 

either  by  way  of  information  or  indictment.  But  as  soon  as  a  particular  in- 
jury is  sustained  by  an  individual  in  consequence  of  the  nuisance,  the  ac- 
tion lies.     Co.  Litt.  56,  a. 

The  injuries  for  which  this  action  lies  are,  as  has  been  said,  very  various. 
An  enumeration  will  not  be  attempted.  Those  which  follow  must  suffice, 
in  addition  to  wliat  liavc  already  been  mentioned. 

An  action  on  the  case  will  lie,  if  the  party's  health  is  impaired  by  any 
nuisance  of  the  defendant,  or  by  his  selling  him  bad  wine,  or  treating  him 
unskilfully  as  a  surgeon  ;  or  if  he  has  been  bitten  by  the  dog  or  kicked  by 
the  horse  of  the  defendant,  where  the  injury  has  arisen  not  from  a  want  of 
care  on  the  part  of  the  plaintiff,  but  from  the  vicious  character  of  the  ani- 
mal, accompanied  on  the  part  of  the  defendant  by  a  knowledge  thereof,  and 
a  want  of  due  care  to  prevent  his  doing  injury.  In  like  manner  case  lies 
for  injuries  to  the  person,  consequential  on  the  acts  of  the  defendant — as 
in  the  case  before  put  of  a  log  thrown  into  the  highway;  or  for  injuries 
proceeding  from  the  negligence  of  the  defendant's  servant — as  where  he 
carelessly  drove  his  master's  carriage,  whereby  he  ran  against  the  plaintiff's 
and  overset  it,  by  which  the  plaintiff  was  hurt;  or  where  he  carelessly  drove 
his  master's  carriage,  which  was  hired  by  the  plaintiff,  so  that  it  was  over- 
set and  he  was  hurt. 

This  action  also  lies  for  consequential  injury  to  the  plaintiff's  personal 
property,  proceeding  from  the  act  of  the  defendant,  or  Irom  his  omission, 
or  the  omission  or  negligence  of  his  servants.  And  so  it  lies  for  an  injury 
done  to  his  property  by  a  vicious  animal  of  the  defendant,  where  the  scien- 
ter and  a  want  of  due  care  appears.*  Actions  against  attorneys,  bailees, 
carriers,  innkeepers.  &.c.  where  they  have  been  guilty  of  negligence  by  which 
they  have  become  liable,  as  elsewhere  explained,  come  under  this  head. 
So  also  do  actions  for  fraud  or  deceit  in  sales,  of  which  I  have  sj)oken  in 
another  place,  or  for  any  other  fraud  or  deception  whereby  the  party  is  in- 
jured, as  by  falsely  representing  an  insolvent  man  to  be  solvent,  the  defen- 
dant knowing  him  to  be  otherwise. 

A  fruitful  source  of  actions  on  the  case,  is  to  be  found  in  the  transactions 
of  sheriffs.  Thus  this  action  lay,  at  common  law,  for  taking  insufficient 
bail,  though  our  law  now  affords  a  shorter  remedy.  And  it  now  lies  for 
taking  insufficient  security  in  a  forthcoming  bond  ;  or  permitting  a  prisoner 
to  escape  ;  or  for  levying  an  execution  on  property  on  leased  jMcmises,  and 
selling  and  paying  over  the  proceeds  without  paying  the  landlord's  rent,  (1 
Wash,  '^-i-i;)  or  for  paying  money  on  A's  execution  which  ought  to  have 
been  applied  to  B's  ;  or  for  a  false  return  ;  or  for  not  levying  an  execution 
or  serving  a  writ,  whereby  the  plaintiff's  debt  was  lost  ;  and  so  in  various 
other  cases  where  the  officer  has  omitted  to  perform  a  duly,  or  has  perform- 
ed it  negligently,  by  which  the  party  complaining  lias  sustained  some  ma- 
terial injury. 

This  action  is  also  appropriate  for  a  husband  (1  Chitty,  138,)  whose  wife 
has  been  seduced  or  enticed  to  live  away  from  him  without  suflicient  cause  ; 
or  for  a  father  whose  daughter  has  been  seduced  ;  though  in  these  cases  the 
action  of  trespass  is  most   usual      It  lies  also  for  a  parent  whose  son  or 

"As  to  wliaiiR  evidence  of  linowlfidge,  see  4  Camp.  198.  2  Stra.  12G4.  2  Esp.  4n2.  But  tlie  owner 
is  ri'il  nii?^\vcMalil(;  (or  (lie  fust  inisc.liini  done  liv  a  dot;,  a  bull,  or  other  lame  animal,  liiill.  N.  I'.  77. 
V2  Mod.  m  I.d.  Kayi/i.  GO.'i.  .See  1 1  C.  I.  .It  .'J:)7.  Vel,  if  lie  should  larrv  liis  do<.  into  a  field,  where 
lie  limi.self  iea  Irecpas.ser.  and  ih"  dog  .«liould  kill  sheep,  this.lhouuh  the  fir.-l  oflenee,  might  he  slated 
■and  pmved  aw  an  atiuravalioiiof  the  lrenpasg.  I!ur.  iidil.*.  2  Lev.  J 72.  J{nt  where  a  Heree  and  vieions 
do'.;  IS  kept  ehiined  lor ihe  defeiiec  of  the  premises,  and  anv  one  incanliously,  or  not  knowing  of  it, 
shiiuld  i;o  HO  near  as  to  l>e  injured  hy  il,  noiielionean  he  mainlaiiicd  by  Ihe  person  imured,  though  he 
was  sc'eking  the  owner,  with  whom  he  had  business.  Uatea  w.  Crosbie.lM. '1\  J79ii,  in  the  king's 
bench.  If  a  man  sets  traps  in  his  own  grounds,  but  baited  with  sncli  strong-scented  articles  as  allure 
the  neighboring  dog.s  from  the  premises  of  the  owners,  oi  from  the  highways,  the  owner  of  a  dog  in- 
jured may  mainiaiu  aa  aciiou  upon  the  ctige.  yEast,2-J7:  but,  sec  Hot i'S.  Willies,  3  liar.  &  Aid. 
'■i^i'  Chili!/. 


CHAP.  7.]  •  DEBT.  95 

daughter  has  been  excessivehj  beaten,  whereby  he  has  lost  their  service  or 
been  put  to  expense  in  nursing  or  curing  them.  In  like  manner,  it  is  the 
proper  action  for  enticing  away  a  servant,  or  beating  him  excessively,  by 
which  loss  of  service  or  expense  ensues,  or  for  any  injury  by  which  the  ser- 
vant is  disabled,  whether  proceeding  directly  or  consequeiitially  from  the 
act  of  the  defendant,  his  servants  or  property. 

The  action  on  the  case  also  lies,  it  is  said,  against  a*  magistrate  for  refu- 
sing to  take  deposi'ions,  whereby  the  party  loses  his  action  against  the  hun- 
dred, or  for  refusing  to  take  bail  where  it  ought  to  be  granted,  provided  it  be 
a  case  in  which  he  is  acting  ministerially.  2  Saun.  (31,  c.  d.  2  Esp.  GIS, 
citing  Leonard,  Hawkins,  &  Hale.  It  is  said,  also,  to  lie  against  a  sherilF 
who  refuses  to  take  a  poll  for  a  candidate  for  office,  or  to  permit  a  person 
to  vote  who  is  entitled  to  do  so.  Salk.  19.  See  3  Mun.  579,  where  tha 
point,  however,  was  not  decided. 

This  is  also  a  proper  remedy  for  a  patentee  whose  patent  right  is  invaded. 
See  2  L.  U.  S.  3i8,  &c.     3  L.  U.  S.  342. 

This  action  lies,  also,  where  a  distress  and  sale  have  been  made  for  rent 
where  no  rent  is  due,  (1  R.  C.  ch.  113,  §  5,)  or  where  there  has  been  any 
irregularity  in  the  taking  or  sale  or  disposal  of  the  distress.  1  Chitty,  140. 
So  it  lies  for  a  landlord  against  a  person  who  rescues  a  distress,  or  for  a  cre- 
ditor against  one  who  rescues  a  person  or  goods  taken  in  execution.  It  is 
also  the  appropriate  remedy  for  persons  having  the  reversionary  interest  in 
personal  property,  for  an  injury  done  to  it;  for,  as  has  been  said,  trespass 
will  not  lie  for  the  reversioner,  that  action  being  given  only  to  the  person 
having  possession,  or  entitled  to  immediate  possession. 

The  declaration  in  this  action  ought  not  to  state  the  injury  to  have  been 
committed  vi  el  armis,  nor  ought  it  to  conclude  contra  pacem,  for  these  are 
appropriate  to  actions  of  trespass.  Yet  the  words  viet  armis  will  not  con- 
vert the  action  into  an  action  of  trespass,  if  the  frame  and  structure  of  the 
declaration  in  other  respects  is  that  of  an  action  on  the  case.  6  T.  R.  125. 
2  H.  &  M.  443,  444.  In  other  points,  the  declaration  should  conform  to 
the  circumstances  on  which  the  action  is  founded,  and  set  forth  all  the  mat- 
ters which  are  essential  to  shew  a  wrong  on  the  part  of  the  defendant,  and 
injury  sustained  by  the  plaintiff.  Hence,  there  is  a  great  variety  in  the 
forms  of  the  declaration  in  different  cases.  Care  must  be  taken,  however, 
that  the  declaration  conform  to  the  evidence,  for  in  this,  as  in  other  actions, 
the  allegata  et  probata  must  correspond. 

The  pleas  to  this  action,  generally,  are,  not  guilty,  and  the  statute  of  lim- 
itations. In  an  action  of  slander,  however,  we  have  seen  there  are  various 
other  pleas. 

The  verdict  is  for  so  much  damages  as  the  jury  may  deem  commen- 
surate to  the  injury  sustained. 


CHAPTER  VII. 

DEBT. 

II.  "  Hitherto  of  injuries  affecting  the  right  of  things  personal,  in  posses- 
sion. We  are  next  to  consider  those  which  regard  things  in  action  only : 
or  such  rights  as  are  founded  on,  and  arise  from  contracts  :  the  nature  and 
several  divisions  of  which  were  explained  in  a  preceding  book.  The  viola- 
tion, or  non-performance,  of  these  contracts,  might  be  extended  into  as 
great  a  variety  of  wrongs,  as  the  rights  which  we  then  considered  :  but  I 
shall  now  consider  them  in  a  more  comprehensive  view,  by  here  making 
only  a  two-fold  division  of  contracts:  viz,  contracts  express,  ?nd  contracts 


96  DEBT.  [  BOOK  3, 

implied :  and  pointing  out  the  injuries  that  arise  from  the  violation  of  each, 
with  their  respective  remedies. 

"  Express  contracts  include  three  distinct  species;  debts,  covenants,  and 
promises. 

"The  legal  acceptation  of  debt  is,  a  sum  of  money  due  by  certain  and 
express  agreement:  as,  by  a  bond  for  a  determinate  sum,  a  bill  or  note  ;  a 
special  bargain  ;  or  a  rent  reserved  on  a  lease  ;  where  the  quantity  is  fixed 
and  specific,  and  does  not  depend  upon  any  subsequent  valuation  to  settle 
it.  The  non-payment  of  tiiese  is  an  injury,  for  which  the  proper  remedy 
is  by  action  of  debt,  to  compel  the  performance  of  the  contract  and  recover 
the  specifical  sum  due.  This  is  the  shortest  and  surest  remedy  ;  particular- 
ly where  the  debt  arises  upon  a  specialty,  that  is,  upon  a  deed,  or  instru- 
ment under  seal.  So,  also,  if  I  verbally  agree  to  pay  a  man  a  certain  price 
for  a  certain  parcel  of  goods,  and  fail  in  the  performance,  an  action  of  debt 
lies  against  me  ;  for  this  is  also  a  determinate  contract:  but  if  I  agree  for  no 
settled  price,  I  am  not  liable  to  an  action  of  debt,  but  a  special  action  on 
the  case,  according  to  the  nature  of  my  contract.  And,  indeed,  actions  of 
debt  are  now  seldom  brought  but  upon  special  contracts  under  seal  ;  where- 
in the  sum  due  is  clearly  and  precisely  expressed :  for,  in  case  of  such  an 
action  upon  a  special  contract,  the  plaintiff  labors  under  two  difliculties. 
First,  the  defendant  has  here  the  same  advantage  as  in  an  action  oi^  detinue, 
that  of  waging  his  law,  or  purging  himself  of  the  debt  by  oath,  if  he  thinks 
proper,  [though  this  is  a  defence  entirely  out  of  use,  even  if  it  has  existence 
in  Virginia.]  Secondly,  in  an  action  of  debt  the  plaintiff  must  prove  the 
U'hole  debt  he  claims,  or  recover  nothing  at  all.  For  the  debt  is  one  single 
cause  of  action,  fixed  and  determined  ;  and  which,  therefore,  if  the  proof 
varies  from  the  claim,  cannot  be  looked  upon  as  the  same  contract  wliere- 
of  the  performance  is  sued  for.  If,  therefore,  1  bring  an  action  of  debt  for 
£30,  I  am  not  at  liberty  to  prove  a  debt  of  £-2{),  and  recover  a  verdict  there- 
on ;  any  more  than  if  I  bring  an  action  of  detinue  for  a  horse,  I  can  there- 
by recover  an  ox.  For  I  fail  in  the  proof  of  that  contract,  which  my  ac- 
tion or  complaint  has  alleged  to  be  specific,  express,  and  determinate.  But 
in  an  action  on  the  case,  on  what  is  called  an  indebitatus  assumpsit,  which 
is  not  brought  to  compel  a  specific  performance  of  the  contract,  but  to  re- 
cover damages  for  its  non-performance,  the  implied  assumpsit,  and  conse- 
quently the  damages  for  the  breach  of  it,  are  in  their  nature  indeterminate  j 
and  will  therefore  adapt  and  proportion  themselves  to  the  truth  of  the  case 
which  shall  be  proved,  without  being  confined  to  the  precise  demand  stated 
in  the  declaration.  For  if  any  debt  be  jiroved,  however  less  than  the  sum 
demanded,  the  law  will  raise  a  promise  yjro  tantu,  and  the  damages  will  of 
course  be  proportioned  to  the  actual  debt.  So  that  I  may  declare  that  the 
defendant,  bein^  indebted  to  me  in  £30,  undertook  or  promised  to  pay  it,  but 
failed  ;  but  lay  my  damages  arising  from  such  failure  at  what  sum  I  |)lease  : 
and  the  jury  will,  according  to  the  nature  of  my  proof,  allow  either  the. 
whole  in  damages,  or  any  inferior  sum.  And  even  in  actions  oi  debt,  where 
the  contract  is  proved  or  admitted,  if  the  defendant  can  shew  that  he  has 
discharged  any  part  of  it,  the  plaintiff  shall  recover  the  residue." 

The  doctrine  here  laid  down  by  i\Ir.  Blackstone,  is,  I  conceive,  in  princi- 
ple entirely  correct,  though  his  phraseology  might  perhaps  with  advantage 
have  been  somewhat  more  guarded. 

It  is  certainly  said  by  Lord  Mansfield,  in  the  case  cited  by  Mr.  Christian 
in  his  note  to  this  passage,  that  it  is  not  necessary  that  the  plainlifi"  in  debt 
should  recover  the  exact  sum  demanded.  See,  also,  2  Bl.  11.  VZ'il.  1  H. 
B.ooO.  11  E.  irl.  Mr.  Chitty  broadly  states,  that  in  debt  on  simple  con- 
tjact,  the  plaintiff  may  prove  and  recover  less  than  is  demanded  by  the  de- 
claration.   Chitty's  Plead.  107.     I  conceive,  however,  that  where  the  de- 


CHAP.  7.]  DEBT.  97 

wanrHs  certain  and  determinate, — where  the  declaration  imports  a  title  to 
a  certain  fixed  gross  sum,  numerically  certain,  then  the  evidence  must  shew 
a  right  to  that  sum,  or  the  action  fails,  and  the  party  cannot  recover  less, 
except  where  defendant  proves  he  has  discharged  a  part,  in  which  case,  as 
Mr.  Blackstone  tells  us,  the  plaintiff  has  judgment  for  the  residue,  the 
jury  finding  tlie  payment  of  that  part.  There  are  cases,  it  is  true,  in  which 
less  than  the  debt  demanded  is  recovered,  but  these  do  not  conflict  with, 
the  principle  that  the  plaintiff  must  recover  according  to  the  contract  sued 
upon.  Thus,  in  Walker  ts  Witter,  (Doug.  1,  G,)  the  objection  made  was, 
that  tbe  value  of  Jamaica  currency  for  which  the  judgment  was  rendered, 
on  which  the  suit  was  brought,  was  fluctuating.  This  objection  was  over- 
ruled;  for  though  the  demand  of  the  plaintiff  was  to  be  reduced  to  ster- 
ling money,  yet  it  was  a  certain  determinate  demand  for  the  amount  of  a 
judgment,  and  therefore  might  be  recovered  in  debt;  but  it  was  not  pre- 
tended that  the  plaintiff  could  have  recovered  one  penny  less  than  the  va- 
lue of  that  judgment.'  In  a  subsequent  case,  in  the  same,  book,  (page 
73:2,)  Lord  Mansfield  explains  himself  by  saying,  that,  in  such  cases,  the 
gist  of  the  action  is  supported,  and  a  case  proved  consistent  with  the  de- 
claration. 

'  A  declaration  in  debt  hath  also  been  held  good,  though  it  specified  by  the 
several  counts  a  less  sum  than  was  demanded  by  the  writ,  and  yet  assigned 
as  the  breach  the  non-payment  of  the  amount  stated  in  the  writ.  1  H.  B. 
2-19.     See  also  11  E.  6-2. 

It  is  said,  however,  that  debt  on  simple  contract  will  lie  for  an  indetermi- 
nate sum,  capable  of  being  readily  reduced  to  a  certainty,  though  it  will  not 
lie  where  the  demand  is  rather  for  unliquidated  damages  than  for  money. 
1  Chitty,  101.     Bac.  Debt,  E. 

I  must,  however,  here  observe,  that  with  us  assumpsit  in  these  cases  is  the 
most  usual  action.  It  is  attended  with  less  nicety  as  to  this  matter,  and  it 
is  not  perceived  that  in  Virginia  there  is  any  reason  for  a  preference  of  the 
action  of  debt  to  the  assumpsit,  Avhere  the  sum  is  not  ascertained.  On 
promissory 'notes,  indeed,  debt  is  to  be  preferred,  and  is  always  brought,  for 
bail  may  be  demanded  in  actions  upon  them,  and  moreover  they  are  not  lia- 
ble to  the  objections  above  spoken  of. 

An  action  of  debt  v/ill  not  lie  against  an  executoi:  on  a  simple  contract, 
for  the  testator  might  have  waged  his  law,  which  the  executor  cannot  do ; 
I  Esp.  17"2;  an  absurd  reason,  indeed  ;  as  it  only  turns  the  party  around  to 
another  kind  of  action.  The  rule,  however,  is  settled.  1  Bos.  &  Pul.  N. 
R.  298. 

Debt,  it  is  said,  will  not  lie  against  the  acceptor  of  a  bill  of  exchange,  for 
the  acceptor  is  not  the  debtor ;  he  is  in  the  nature  of  a  security,  and  is  only 
liable  by  reason  of  his  undertaking.  Hence,  assumpsit  upon  his  accep- 
tance is  the  proper  remefly.  Salk.  23.  3  H.  &  M.  394.  2  Mun.  302.  3 
Wheat.  385,  contra. 

An  action  of  debt  lies  also  upon  a  judgment  of  a  court  of  record,  for 
whatever  the  laws  order  any  one  to  pay,  that  becomes  instantly  a  debt,  which 
he  hath  before-hand  contracted  to  discharge.  And  this  implied  agreement 
it  is,  that  gives  the  plaintiff  a  right  to  instilute  a  second  action,  founded 
merely  on  the  general  contract,  in  order  to  recover  such  damages,  or  sum 
of  money,  as  are  assessed  by  the  jury  and  adjudged  by  the  court  to  be  due 
from  the  defendant  to  the  plaintiff  in  any  former  action.  So  that  if  he  hath 
once  obtained  a  judgment  against  another  for  a  certain  sum,  and  neglects 
to  take  out  execution  thereupon,  he  may  afterwards  bring  an  action  of  debt 
upon  this  judgment,  and  shall  not  be  put  upon  the  proof  of  the  origi- 
nal cause  of  action  ;  but  upon  shewing  the  judgment  once  obtained,  still 
in  full  force,  and  yet  unsatisfied,  the  law  immediately  implies,  that  by  the 
Vol.  2—13 


98  DEBT.  [book   ^' 

original  contract  of  society   the  defendant  hath  contracted  a  debt,  and  is 

bound  to  pay  it. 

In  debt  upon  a  judgment  interest  may  be  given  for  the  detention  by  way 
of  damages  when  the  judgment  did  not  carry  interest  in  terms.  Payments, 
however,  can  only  be  applied  to  the  principal.  Mercer's  ad.  vs.  Be  ale,  4 
Leigh. 

In  England  debt  also  lies  on  bail  bonds,  against  the  bail ;  but  the  action 
is  disused  with  us,  as  upon  the  return  of  bail  the  suit  proceeds  against  the 
bail  as  well  as  the  principal.     This  matter  is  explained  hereafter. 

Debt  also  lies  against  a  sheriff  for  money  made  on  an  execution.  But 
our  statute  having  given  a  more  summary  remedy,  this  action  is  disused  in 
such  cases.  Debt,  however,  lies  against  a  sheriff  for  the  whole  sum, 
where  a  person  in  execution  escapes  ;  so  also  on  his  return  of  ha^  ing  seized 
goods  to  such  a  value,  which  were  rescued,  that  value  may  be  recovered  in 
this  action,  for  the  rescue  is  no  excuse  to  him,  as  he  might  summon  tlie 
posse  comilatas.  2  Saun.  343.  The  better  reason,  perhaps,  is,  that  if  such 
apologies  were  permitted,  it  would  lead  to  dangerous  connivances  between 
the  sheriff  and  debtor. 

Of  the  pleadings  in  debt.  The  declaration  in  actions  of  debt  on  simpla 
contract,  should  set  out  the  consideration  or  promise,  whicli  is  the  ground 
of  his  action;  1  Esp.  206;  unless  it  appears,  indeed,  on  the  face  of  the 
contract,  where  it  is  in  writing.  And  this  doctrine  seems  to  be  confirmed 
by  the  spirit  of  the  cases  of  Cooke  vs.  Simmes,  (2  Call,  39,)  and  Hall  vs. 
Smith,  (3  Mun.  550.  4  Mun.  95.  5  Mun.  23,)  though  these  were  actions 
of  assumpsit.  Where  debt  is  brought  on  a  promissory  note  which  is  reci- 
ted in  the  declaration  to  have  been  for  value  received,  it  would,  I  presume, 
be  sufficient;  and  it  has  been  so  held  without  such  recital,  2  Leigh,  195. 
See  8  John.  120.  9  John.  217.  When  a  note  is  expressed  to  be  for  va- 
lue, a  consideration  is  presumed  ;  but  the  presumption  may  be  repelled.  5 
Barn.  &  Cres.  501.     Sed  vide,  3  Camp.  266.     7  John.  321. 

In  declaring  on  a  specially,  the  declaration  should  be  in  the  following 
form,  or  to  the  following  effect:* 

Tenth  Judicial  District,  Frederick  County,  5c/.  (1) 
A  B  (2)  complains  of  C  D  (3)  in  custodij,  <^'c.  of  a  plea  that  he  render  to 
him  (4)  the  sum  of  $500  (5)  current  money  of  Virginia,  (6)  which  he  owes 
him,  (7)  and  unjustly  detains  from  him  :  for  that  tchereas  the  said  C  D  (8) 
heretofore,  to  wit,  on  the  first  day  of  January,  1825,  at  the  parish  of  Fre- 
deride  and  county  aforesaid,  by  his  certain  writing  obligatory,  (9)  sealed 
with  his  seal,  (10)  and  to  the  court  now  here  shewn,  (11)  acknowledged 
himself  to  be  held  and  firmly  bound  (12)  unto  the  said  A  B  in  the  said 
sum  of  $500  above  demanded,  (13)  to  be  paid  to  the  said  A  B  when  he, 
the  said  CD,  should  be  thereunto  afterwards  recjucsted.  (14.)  Vet  the 
said  C  D,  though  often  requested,  hath  not  yet  f  aid  the  said  sum  or  any 
part  thereof  to  the  said  plaintiff,  (15)  but  to  pay  the  same  hath  hitherto 
wholly  refused,  and  still  refuses  so  to  do,  to  the  damage  of  the  plaintiff 
.$50,  (16)  and  therefore  he  sues. 

John  Doe.     IIiciiaud  Roe.     P.  P.  A.  II.  P.  pro  qucrente. 

The  following  comments  on  the  declaration  may  be  of  use  to  the  begin- 
ner : 

1.  The  purpose  of  this  is  to  designate  the  county  in  which  the  facts  are 
alleged  to  have  occurred,  and  the  court  in  which  the  cause  is  to  be  tried.  I 
Chitty,  267,  279.  It  is  called  the  venue,  and  will  be  spoken  of  elsewhere. 
Suffice  it  here  to  say,  that,  in  generul,  even  in  England,  actions  founded  on 

•The  ficures  wiiliin  parentlicn'm  arc  iisef]  to  (k«icnate  the  different  parti  of  the  declaration  for  th»^ 
purpote  of  reference  in  the  comments  on  it. 


CHAP.  7.]  DEBT.  99 

contract  are  transitory,  and  where  that  is  the  case  the  action  may  be  tried 
in  any  county.  In  Virginia  it  is,  in  general,  not  essential  to  state  in  the  de- 
claration where  the  contract  arose.  But  this  is  sometimes  necessary,  and 
when  it  is  done,  then  (for  the  sake  of  obviating  an  objection  for  a  variance 
between  the  bond  and  the  description  of  it)  the  plaintiff  is  permitted  by  a 
fiction  to  state  under  a  videlicit  that  the  place  is  within  the  county  where 
the  venue  is  laid.  Thus  the  above  form  states  the  bond  to  have  been  made 
"  at  the  parish  of  Frederick  and  county  aforesaid."  If  upon  the  face  of  the 
bond  it  appeared  to  have  been  made  elsewhere,  (as  at  Philadelphia,)  the 
following  words  would  be  inserted  immediately  preceding — "at  Philadel- 
phia, to-wit;"  so  as  to  read  "at  Philadelphia,  to-wit:  at  the  parish  of 
Frederick  and  county  aforesaid."  If,  however,  this  fiction  bo  omitted,  the 
defendant  will  not  be  permitted  to  rest  his  defence  upon  the  circumstance 
that  the  cause  of  action  arose  out  of  the  county,  for  that  is  an  immaterial 
matter.  6  Mun.  112.  In  short,  the  declaration  would  be  sufficient  after  a 
verdict,  without  any  venue  whatever  being  laid.  Nor  can  the  truth  of  this 
fiction  be  traversed  or  denied,  for  it  is  admitted,  not  because  it  is  true,  (for 
it  is  known  to  be  false,)  but  because  it  is  immaterial  whether  it  be  true  or 
false.  For  if  the  defendant  did  give  his  bond,  it  matters  not  where  he  was 
when  he  gave  it,  unless  the  "locality  of  the  cuntract  furius  an  essential  part 
of  the  deience,  and  of  this  he  must  avail  himself  in  another  vvay. 

It  must  be  observed,  however,  that  in  our  corporation  courts  it  is  neces-. 
sary,  in  addition  to  the  statement  of  the  venue,  to  set  forth  that  the  contract 
was  made  within  the  jurisdiction  of  the  court,  and  if  this  allegation  be 
omitted,  the  declaration  will  be  insufficient  even  after  a  verdict.  1  Chitty, 
231.  1  Wash.  81.  See  3  Hen.  31-3.  But  this  principle  is  confined  to  ca-r 
ses  of  limited  jurisdiction. 

2.  The  names  of  the  plaintiff  or  plaintiffs  should  be  correctly  stated.  So, 
also,  unless  they  sue  in  their  own  right,  the  character  in  which  they  sue 
should  be  specified,  whether  it  be  as  surviving  obligees,  executors,  or  admi- 
nistrators. So  also  an  assignee  should  be  designated  as  such,  for  he  cannot 
sue  as  obligee.  3  H.  &M.  219.  And  if  a  suit  be  brought  upon  an  execu- 
tor's, administrator's,  or  guardian's  bond,  in  the  name  of  the  justices,  the 
declaration  should  set  forth,  after  the  names  of  the  plaintiffs,  the  person  at 
whose  instance  the  suit  is  brought,  for  he  is  the  real  plaintiff,  and  is  liable  to 
all  the  costs.  1  Call,  3-15.  The  same  principle  applies  to  sheriffs'  and 
other  like  bonds. 

3.  The  foregoing  remarks  apply  to  the  case  of  the  defendant  as  well  as 
the  plaintiff.  As  to  both,  though  the  name  be  mistaken  or  incorrect  in  the 
bond,  yet  the  safest  way  is  to  nursue  the  signature  of  the  bond.  See  IChit-- 
ty,  224,  citing  3  Taun.  504.  " 

4.  How  far  the  omission  of  these  words  would  be  material  after  verdict, 
may  appear  from  6  Mun.  4SG,  where  even  in  tZc/inue  the  omission  was  after 
verdict  not  deemed  fatal.     See,  also,  11  East,  62. 

5  &  C.  The  sum  for  which  the  bond  is  given,  must  be  here  accurately 
stated  so  as  to  correspond  with  the  instrument  itself;  else,  if  the  bond  be 
properly  described  at  No.  13,  the  declaration  would  be  inconsistent  with  it- 
self, and  if  it  be  not,  it  will  be  a  fatal  variance,  as  we  shall  presently  see. 
Hence,  the  demand  should  be  for  dollars,  or  pounds,  or  crowns,  or  guilders, 
or  other  currency,  according  as  the  bond  is  for  one  or  other  of  them.  If  it 
be  for  dollars,  or  pounds,  which  are  Virginia  currency,  nothing  more  is  ne- 
cessary. But  where  the  bond  is  for  foreign  money,  as  for  so  many  guilders, 
or  francs,  or  livres,  or  so  many  pounds  Pennsylvania  currency,  &c.,  the 
plaintiff^s  demand  must  be  for  the  numerical  amount  in  foreign  currency  sta- 
ted in  the  bond,  "  of  the  value  of  so  much,  current  money  of  Virginia," 
and  the  verdict  of  the  jury  is  in  the  same  way.     If  a  bond,  however,  is  for 


100  DEBT.  [book  3. 

Sterling  money,  the  declaration  demands  it  as  such  without  layingthe  value, 
(2  Wash.  lOo,)  and  the  court,  by  a  rule  at  the  foot  of  its  judgment,  fixes  the 
exchan'i'e.  To  omit  this  is  fatal.  3  Call,  557.  See  1  K.  C.  ch.  12G,  §  6. 
Also,  rWash.  37:2.     2  Wash.  150.     1  Call,  4\,  391. 

If  a  bond  be  given  for  tobacco,  the  plaintiff  by  his  declaration  demands 
the  tobacco  itself,  and  not  the  value  of  it,  and  judgment  is  rendered  accord- 
ingly. 

It  must  be  remembered,  that  in  the  case  of  a  bond  in  a  penalty  with  col- 
lateral condition,  or  with  condition  to  pay  a  less  sum,  and  also  in  the  case 
of  a  penal  bill,  the  penallij  is  to  be  demanded,  and  not  the  sum  actually  due. 
So  in  debt  on  a  single  bill  or  a  promissory  note,  the  declaration  is  for  the 
whole  sum  for  which  it  was  given,  and  not  merely  for  what  yet  remains  un- 
paid. 

Formerly,  it  was  held  that  in  debt  upon  a  promissory  note  with  interest 
from  the  date,  the  declaration  should  claim  interest,  and  that  if  it  did  not, 
judgment  upon  non  sum  informatus,  or  by  nil  dicit,  could  be  entered  only 
for  the  principal.  1  Wash.  70.  2  Call,  212.  But  now,  though  the  decla- 
ration docs  not  demand  interest,  the  jury  gives  it  by  their  verdict,  or  if  the 
judgment  is  by  default,  or  upon  demurrer,  the  plaintiff  nevertheless  recovers 
it.     1  R.  C.  ch.  1-2S,  'J  79,  80.     2  Mun.  -334.     4  Mun.  7G. 

If  an  action  be  brought  on  several  bonds  together,  (which  maybe  done,)* 
the  debt  demanded  should  regularly  be  the  aggregate  of  all  the  sums  alleg- 
ed to  be  due  in  the  different  counts;  an  error  herein  would  seem,  howev- 
er, not  to  be  fatal.  HE.  62.  The  declaration  next  proceeds  to  describe 
the  several  bonds  in  distinct  counts  ;  see  1  Saun.  288,  n.  1.  2  Chitty,  152  ; 
and  concludes  with  an  allegation  of  non-payment  of  any  part  of  the  aggre- 
gate sum, 

7.  The  form  here  is  in  the  debet  and  delinet.  "  The  form  of  the  writ  of 
debt  is  sometimes  in  the  debet  and  delinet,  and  sometimes  in  the  detinet  on- 
ly:  that  is,  the  writ  states,  either  that  the  defendant  owes  and  unjustly  de- 
iains  the  debt  or  thing  iu  question,  or  only  that  he  unjustly  detains  it.  It 
is  brought  in  the  debet  as  well  as  detinet,  when  sued  by  one  of  the  original 
contracting  parties  who  personally  gave  the  credit,  against  the  other  who 
personally  incurred  the  debt,  or  against  his  heirs,  if  they  are  bound  to  the 
payment ;  as  by  the  obligee  against  the  obligor,  the  landlord  against  the 
tenant,  &,c.  But.  if  it  be  brought  by  or  against  an  executor  for  a  debt  due 
to  or  from  the  testator,  this,  not  being  his  own  debt,  shall  be  sued  for  in  the 
detinet  only.  So,  also,  if  (he  action  be  for  goods,  for  corn,  or  an  horse,  the 
writ  shall  be  in  the  detinet  only  ;  for  nothing  but  a  sum  of  money,  for  which 
I  (or  my  ancestors  in  my  name)  have  personally  contracted,  is  ])roperly  con- 
sidered as  my  debt.  And,  indeed,  a  writ  of  debt  in  the  delinet  only,  for 
goods  and  chattels,  is  neither  more  nor  less  than  a  mere  writ  of  detinue; 
and  is  followed  by  the  very  same  judgment." 

In  actions  by  or  against  executors  and  administrators  for  rent  due  in  their 
own  time,  and  in  an  action  for  a  devastavit,  the  debet  and  detinet  is  pro- 
per. An:!  if  the  declaration  be  in  the  delinet  only,  the  judgment  can  only 
be  dc  bonis  teslaloris.  3  H.  St  M.  123.  Observe,  also,  that  though  a  bond 
is  taken  to  or  given  by  executors  or  administrators,  and  ihcy  are  so  named  in 
the  bond,  the  action  should  be  both  in  the  debet  and  detinet,  for  by  the  spe- 
cialty the  nature  of  the  original  debt  is  changed,  and  though  it  may  have 
been  originally  a  simple  contract  of  the  testator's,  the  bond  has  rendered  it 
their  own. 

An  heir  should  be  charged  in  the  debet  and  delinet.  But  if  charged  in 
the  detinet  only,  the  defect  is  not  fatal,  ciihcr  after  verdict  or  on  general  de- 
murrer.    2  ]\Iun.  88. 

"As  to  con-olitJadii^  acli'^ns,  sec  Post.  201. 


CHAP.  7]  DEBT.  101 

8.  Where  the  name  of  the  defendant  to  the  bond  is  misspelt,  or  in  any 
wise  varies  from  his  real  name,  the   form  should  be  thus  ;   "  ihe  said  C  D, 

by  the  name  of ,  c^-c;"  here  literally  inserting  the  name  as  it  appears 

on  the  face  of  the  bond.  Indeed,  thoutrh  the  names  be  totally  different,  yet 
if  the  defendant  signed,  sealed,  and  delivered  the  bond,  his  liability,  which 
grows  out  of  the  sealing  and  delivery,  and  not  out  of  the  signing,  is  the  same. 
In  such  case,  it  should  be  stated  that  "  the  said  C  D,  by  the  name  of  E  F, 
acknowledged  himself,  Sfc."  See  Watson  on  Part.  164,  165.  2  B.  &,  P. 
338. 

The  practitioner  should  be  careful  that  the  description  of  the  bond  or 
writing  sued  upon  be  strictly  accurate,  so  far  as  it  goes.  A  variance  is  cre- 
nerally  fatal.  Bull.  169.  1  Esp.  210.  As  to  variance,  see  Starkie's  Evi- 
dence, part  4,  Variance.  Also,  Mowry  vs.  Miller,  3  Leigh.  But  thouorh 
the  county  of  the  obligor's  residence  be  stated  in  the  bond,  the  omission  of 
it  in  the  declaration  is  immaterial.  1  Wash.  72.  So  if  the  bond  be  given 
to  A  B,  on  account  of  G  Sf  P,  merchants  in  Glasgow,  the  omission  of  the 
words  in  italic  is  unimportant.  So  an  action  brought  in  the  name  of  A  B, 
cashier  of  the  Farmer's  Bank,  is  an  action  brought  by  him  individually,  and 
the  other  words  are  surplusage  ;  4  Ran.  359  ;  and  therefore  not  necessary 
to  be  inserted.  Yet  if  the  date  be  mistaken,  or  the  sum  be  erroneous,  or 
the  lime  of  payment  be  variant,  it  will  be  fatal  on  the  trial  ;  3  H.  &  M.  219. 
Phil,  Ev.  162;  though  the  error  is  unimportant  where  the  judgment  is  per- 
mitted to  go  by  delault.     2  H.  &  M.  446. 

9.  In  declaring  on  a  speciality  it  should  always  appear  by  the  declaration 
that  it  is  such.  It  is  therefore  usually  set  forth  explicitly  that  the  instru- 
ment declared  on  was  "sealed  with  the  defendant's  seal."  Yet  there  are 
certain  terms  which  ex  vi termini  import  that  it  was  sealed,  as  "bond,  wri- 
ting obligatory,  penal  bill,  deed,  indenture,'^  and  tlxese  will  suffice  of  them- 
selves.    1  Saun.  290,  n,  1,  320,  note  3. 

As  every  deed  imports  a  consideration,  it  is  not  necessary  to  set  forth  any 
in  an  action  of  debt  on  a  bond. 

10.  Where  there  are  more  defendants  than  one,  the  declaration  should 
state  a  sealing  by  all.  But  it  must  not  be  forgotten  that  sometimes  though 
a  man  may  have  put  his  hand  and  a  seal  to  a  bond,  yet,  because  of  the 
omission  of  his  name  within  the  body  of  it,  it  is  not  his  deed.  See  3  Mun. 
118. 

11.  This  is  what  is  called  making  pro/er^  Its  object  is  two-fold  ; — to  ena- 
ble the  court  to  inspect  it  and  see  that  the  deed  is  a  good  deed,  and  to  put 
it  in  the  power  of  the  defendant  to  examine  it,  that  he  may  see  if  it  be  re- 
ally his,  and  plead  non  est  factum  if  it  be  not.  Hence,  although  it  is  not 
considered  matter  of  substance,  (for  the  want  of  it  can  only  be  made  an 
objection  by  way  of  demurrer,  1  Chitty,  350,)  this  profert  was  formerly  con- 
sidered indispensable  if  the  defendant  insisted  upon  it;  so  that  if  the  deed 
were  lost  or  even  destroyed  by  the  defendant,  the  plaintiff  could  not  pro- 
ceed at  law  without  making  profert  of  the  bond,  and  thus  he  was  driven  into 
chancery.  This  doctrine,  however,  has  gradually  been  modified  by  the 
good  sense  of  modern  times,  for  if  the  bond  has  been  lost  by  accident,  or 
destroyed  by  fire,  or  by  the  defendant  himself,  or  be  in  his  possession,  and 
this  is  specially  set  forth  in  the  declaration,  it  will  be  good,  although  there 
be  no  profert.  3  T.  R.  151.  See  1  Wash.  252.  But  where  the  plaintiff 
makes  profert,  and  the  defendant  pleads  iwn  est  factum,  (which  plea  puts 
the  plaintiff  on  the  proof  of  the  execution  of  the  bond,)  the  production  of 
the  deed  itself  becomes  indispensable,  although  it  be  proved  by  the  defend- 
ant's confession  that  he  burnt  the  paper  in  question.  4  E.  585.  In  such 
case,  however,  the  plaintiff  may  have  leave  to  amend.  4  E.  485.  Our  law 
has  a  provision  corresponding  with  these  doctrines.     For  if  a  suit  be  brought 


102  DEBT.  [book  3. 

on  a  bond  which  is  filed  among  the  records  of  another  court,  it  is  sufficient 
for  tlie  phintitTto  file  with  his  declaration  a  copy  of  the  bond,  attested  by 
the  clerk  ;  the  defendant  must  plead  to  it,  and  it  will  be  evidence  on  the  trial 
unless  the  defendant  has  pleaded  non  csl  factum,  \n  which  case  the  original 
is  procured  by  summons  to  the  clerk,  (called  a  subpcena  duces  tecum,)  com- 
mandino-  him  to  attend  with  it  on  the  trial  for  the  inspection  of  the  jury. 
1  R.  C.  ch.  128,  §  85.  So  where  a  bond  is  filed  in  a  suit  against  the  exec- 
utor of  the  obligor,  a  copy  may  be  declared  on  in  a  suit  against  the  heirs  in 
another  court,  unless  the  defendants  demand  the  production  of  the  origi- 
nal by  what  is  called  "  craving  oyer,"  or  object  to  the  copy  as  incorrect,  or 
plead  that  there  is  no  such  bond,  in  which  cases  the  original  may  be  pro- 
cured by  subpoena  duces  tecum.  Waller's  exr.  vs.  Ellis  &  al.  2  Mun.  68.  In 
that  case  the  profert  was  made  of  the  copy,  and  there  was  a  demurrer  foir 
this  cause,  which  was  overruled,  although  the  case  certainly  did  not  come 
within  the  provisions  of  the  act  just  cited.  It  must  therefore  be  consider- 
ed as  settled  on  general  principles.  It  shews,  however,  that  the  excuse  fo( 
not  making  profert  of  the  original  bond,  is  traversable,  as  is  stated  1  Chit- 
ty,  y49.     3  T.  R.  158. 

The  manner  of  stating  the  excuse  for  want  o^  profert  is  thus, — "  which 
said  writincT  obligatory  having  been  destroyed  by  accident,"  (or  "by  fire,'^ 
or  "  by  the  said  defendant,")  •'  the  said  A  B  cannot  produce  the  same  to  the 
said  court  here." 

1*2.  The  phraseology  here  is  usually  varied  to  suit  the  instrument; — 
sometimes  the  obligation,  though  sealed,  is  in  the  language  of  a  promissory 
note. 

i'S.  The  variance  even  of  a  cent  in  the  description  of  the  bond  as  to  the 
sum  for  which  it  was  given,  will  be  fatal,  and  upon  the  trial  the  plaintiff  will 
not  be  permitted  to  offer  it  in  evidence.*  Another  manner  in  which  the 
defendant  may  avail  himself  of  the  error,  is  by  craving  oyer  and  then  de- 
murring to  the  declaration,  and  shewing  forth  the  variance. 

14.  This  is  the  usual  form  in  actions  on  bonds  in  a  penalty  and  on  single 
bills  payable  on  demand.  Where  the  suit  is  brought  on  a  single  bill  pay- 
able at  a  day  after  date,  that  part  of  the  bill  should  be  set  forth  with  the 
strictest  accuracy. 

15.  Where  there  are  several  plaintiffs  or  several  defendants,  great  care 
must  be  taken  to  set  forth  the  non-payment  by  any  of  the  jbligors  to  any  of 
the  obligees.  2  Mun.  3-'3G.  The  like  attention  is  necessary  where  there 
have  been  several  assignments:  in  such  case  it  must  be  alleged  in  the  de- 
claration that  the  amount  of  the  obligation  has  not  been  paid  to  the  obligee 
or  any  of  the  assignees,  or  it  will  be  erroneous.     2  Mun.  282,  518. 

16.  The  laying  damages  was  atone  time  important  in  actions  upon  sin- 
gle bills,  for  unless  in  terms  they  bound  the  party  to  pay  interest,  it  could 
only  be  recovered  in  damages.  Now,  however,  it  is  otherwise,  and  the  dam- 
ages are  nominal  (one  cent.) 

In  an  action  for  sterling  money,  the  damages  should  be  laid  in  sterling 
money  also.      1  Wash.  115.     2  Wash.  167. 

In  actions  of  debt  upon  assigned  bonds,  the  declaration,  as  has  been  al« 
ready  said,  states  that  the  plaintiff  sues  as  assignee.  The  form  is  to  this  ef- 
fect: 

"  A  B,  assii^nce  of  C  D,  who  was  assignee  of  E  F,  complains  o/"  G  H,  <SfC. 

•  Sen  Moore  ts.Fcnwick.  Gil. 211.  Juilgc  Parkpr  informs  mn  dial  upon  examining  llie  record  af 
Uiia  case  it  appears  llial  ihe  plea  was  v'lynieiit.    'J'liis  plea  in  Enylaod  ailmits  the  bond,  and  it   need 


CHAP.  7.]  DEBT.  103 

Then  after  setting  forth  the  bond  according  to  the  form  already  given, 
the  assignments  are  stated  to  the  effect  following: 

"  Which  said  writing  obligatory  was  afterwards,  to  wit,  on  the  first  day  of 
February,  18:25,  at  theparish  and  county  aforesaid,  the  same  being  then  uu' 
paid,  assigned  to  the  said  C  D,  by  an  endorsement  thereon,  on  tlie  day  last 
aforesaid,  signed  with  the  proper  hand  of  the  said  E  F,  and  was  af- 
terwards, to  wit,  on  the  first  day  of  March  thereafter,  at  the  parish  and 
county  aforesaid,  being  yet  unpaid,  assigned  by  the  said  C  D  to  the  said 
plaintiff,  by  an  endorsement  thereon,  dated  on  the  day  last  aforesaid, 
signed  with  the  proper  hand  of  the  said  C  D,  whereby  an  action  accrued 
to  the  said,  plaintiff]  to  have  and  demand  of  the  said  defendant  the  said 

sum  of  $500;  whereof  the  defendant  afterwards,  on  the  day  of 

at    the  parish  and  county  aforesaid,  had  notice,  yet  the  said   G 

H,  though  often  requested,  hath  not  yet  paid  the  said  sum  or  any  part 
thereof,  to  the  said  plaintiff,  nor  hath  he  ever  paid  the  same  or  any  part 
thereof  to  the  said  C  D  or  E  F,  but  the  same  to  pay  hath  hitherto  wholly 
refused,  and  still  refuses,  to  the  damage  of  the  plaintiff  $50,  and  therefore 
he  sues,"  &,-c. 

Where  a  bond  is  given  for  the  payment  of  money  by  instalments,  and  one 
of  them  becomes  due,  the  action  is  brought  for  the  whole  penalty  ;  and  the 
judgment  is  rendered  in  the  manner  stated  :  Book  '•2,  276. 

Of  the  pleas  to  actions  of  debt  upon  bonds.  It  is  a  general  rule  that  no 
parol  agreement  shall  be  pleaded  to  vary  the  condition  or  terms  of  a  boH'dj 
But  where  a  bond  is  delivered  to  a  stranger,  then  the  defendant  may  plead 
that  it  was  delivered  as  ah  escrow,  and  that  the  event  hath  not  occurred  up-^ 
on  which  it  was  to  become  his  deed  ; — he  then  concludes,  "  and  so  the  de- 
fendant saith  that  the  said  writing  in  the  declaration  mentioned  is  not  his 
deed,  and  of  this  he  puts  himself  on  the  country  ;" — for  such  a  plea  is  but 
a  special  negative  of  the  affirmative  in  the  declaration,  and  should  therefore 
conclude  to  the  country. 

The  plea  of  nil  debet  is  a  proper  plea  in  an  action  of  debt  for  rent  though 
reserved  by  indenture,  for  the  deed  in  this  case  is  only  inducement.  It  is 
also  the  proper  plea  in  debt  on  a  simple  contract ;  but  it  cannot  be  pleaded 
to  an  action  of  debt  on  bond,  and  if  pleaded  should  be  demurred  to  ; — for 
the  bond  acknowledges  the  debt,  and  being  under  seal  the  defendant  is  es- 
topped to  deny  the  debt,  unless  he  denies  the  deed. 

Hence,  instead  of  nil  debet,  the  general  issue  in  an  action  of  debt  on  a 
bond  or  other  sealed  instrument  is  non  est  factum.  This  puts  in  issue  the 
execution  or  validity  of  the  bond,  as  the  bond  of  the  defendant.  It  thus 
denies  that  there  ever  was  the  contract  stated  in  the  declaration.  But  where 
the  plaintiff  declares  on  a  bond  and  makes  profert  of  a  copy  under  the  pro- 
visions of  our  act  of  assembly,  or  excuses  himself  from  making /)ro/er<  be- 
cause of  its  loss  or  destruction,  the  defendant  may  take  issue  on  the  matter 
of  excuse  or  the  existence  of  the  bond,  by  pleading  that  the  bond  is  not  lost 
or  destroyed,  (3  T.  R.  15S,)  though  it  seems  also  that  he  may  bring  the 
matter  in  question  by  pleading  non  est  factum.  Id.  As  this  plea  however 
must  be  sworn  to,  and  seems  more  appropriate  to  the  denial  of  the  execu- 
tion or  validity  of  the  writing,  than  of  its  non-existence,  a  plea  merely  put- 
ting in  issue  the  fact  of  loss,  &c.  would,  I  presume,  be  most  eligible. 

The  plea  of  non  est  factum  is  used  either  where  the  defendant  denies  the 
sealing  and  delivery  of  the  bond,  or  where  he  alleges  that  it  has  been  can- 
celled or  vacated  by  erasures  or  interlineations,  or  where  he  relies  upon  its 
being  void  by  reason  of  some  original  defect  in  the  character  of  the  transac- 
tion. Where  the  defendant  denies  the  sealing  and  delivery  of  the  bond, 
the  plea  of  non  est  factum  in  general  terms  will  suffice.    So  if  the  deed 


104  DEBT.  [book  3. 

were  delivered  as  an  escrow,  (tliough  it  is  more  usual  to  plead  the  fact  and 
conclude  "  and  so  it  is  not  his  deed,")  or  if  it  was  at  common  law  void  ab 
initio,  as  if  it  was  made  by  a  feme  covert,  or  a  lunatic,  or  if  it  has  been  va- 
cated by  erasure,  alteration,  or  addition,  for  in  all  these  cases  it  is  void,  ipso 
facto.  Since,  however,  the  act  requiring  the  plea  to  be  verified  by  affidavit, 
it  has  become  usual  to  set  forth  the  facts  which  shew  the  deed  to  be  void, 
and  conclude  "  and  so  the  said  vvritin^r  is  not  his  deed,  and  of  this  he  puts 
Jiimself  on  the  country,"  Stc.  And  tliis  is  what  is  called  a  special  non  est 
factum,  the  object  of  which  is  to  (five  the  plaintiff  full  notice  of  the  de- 
fence, to  enable  him  to  rebut  it.  These  pleas,  like  a  general  non  est  fac- 
tum, must  be  verified  by  oath  under  our  law,  and  the  affidavit  must  be  posi- 
tive so  far  as  relates  to  the  facts  on  which  the  defendant  relies,  and  ought 
not  to  be  only  "  to  the  best  of  the  defendant's  belief,'"  except  where  the 
defendant  is  but  executor,  administrator,  or  heir  of  the  supposed  obligor. 

1  R.  C.  ch.  128,  §  33.  Yet  where  the  affidavit  of  the  obligor  was  "  to  the 
best  of  his  knowledge  and  belief,"  it  was  held  sufficient,  and  his  swearing 
to  the  best  of  his  knowledge  in  relation  to  facts  resting  on  his  knowledge, 
was  held  to  be  a  positive  affidavit.  G  Mun.  AQ-i.  But  it  is  not  necessary 
that  the  party  should  swear  to  the  legal  inferences  from  the  facts,  and 
therefore  the  act  of  assembly  is  satisfied  by  an  affidavit  verifying  the  facts 
only.     Ibid. 

It  is  proper  to  observe,  that,  in  some  of  the  above  mentioned  cases,  the 
defendant  may  either  plead  as  above,  or  may  plead  the  matter  of  his  defence 
specially,  and  conclude  with  a  verification  and  a  prayer  of  judgment,  whether 
he  ought  to  be  charged  with  the  debt.  Such  is  the  case  of  an  escrow,  or 
the  bond  of  a  feme  covert.  2  Chitty,  4GG.  But  where  the  defendant  relies 
upon  any  matter  extraneous  for  the  purpose  of  avoiding  the  bond,  such  as 
infancy  or  duress,  or  usury  or  gambling,  or  because  it  is  in  violation  of  a 
statute,  the  facts,  it  would  seem,  must  be  pleaded  specially,  and  the  plea  con- 
cludes with  a  verification  and  a  prayer  of  judgment  "  whether  he  ought  to 
be  charged  with  the  debt  by  virtue  of  the  said  supposed  writing  obligatory." 

2  Chitty,  2GG,  &c. 

It  must  be  observed,  however,  that  this  plea  of  non  est  factum  to  avoid  a 
deed  for  usury,  gaming,  and  such  like,  is  only  necessary  or  proper  where 
the  fact  does  not  appear  on  the  face  of  the  instrument.  For  if  it  does  so 
appear,  the  proper  mode  of  taking  advantage  of  it  is  by  praying  oyer  of  the 
bond  with  the  condition,  (i.  e.  praying  to  "hear"  it  read  to  him,)  which  be- 
ing granted,  the  bond  with  the  condition  becomes  ])arcel  of  the  record.  3 
Salk.  119.  By  this  means  it  also  becomes  parcel  of  the  plaintiffs  declara- 
ration,  [Carth.  513,]  and  thus  the  defect  of  the  bond  appearing  on  the  face 
of  it,  the  defendant  ought  to  demur  to  the  declaration,  and  will  have  judg- 
ment.    2  Bl.  Rep.  1108.     See,  however,  I  Saund.  295,  b.  contra. 

Accord  and  satisfaction  is  a  good  plea  to  an  action  of  debt  on  bond  ;  but 
of  this  enough  has  been  said  elsewhere. 

The  plea  of  tender  is  also  a  good  plea  in  debt.  The  principles  of  this 
plea  are  stated  under  the  head  of  assumpsit,  post.  155  Starkie's  Ev.  4 
part,  1.390.     G  Bac.  "  Tender."     1  Saun.  33,  n.  2. 

The  plea  of  payment  is  a  special  plea,  and  is  the  most  usual  in  this  ac- 
tion. This  plea  may  be  pleaded  generally  or  at  the  day,  according  to  cir- 
cumstances. 

Payment  generally  is  the  customary  plea,  whether  made  before  or  after 
the  day.  1  R.  C.  ch.  12d,  §  81.  If  a  bond  be  payable  on  a  particular  day 
and  is  paid  before,  the  plea  should  be  solvit  ad  diem;  where  it  is  payable  on 
or  before,  payment  before  the  day  is  a  good  plea.  7  John.  C.  R.  9,  citing 
2  Wils.  173,  150.     Sir.  317.     Bull.  174.     Solvit  ad  diemis  the  proper  way 


CHAP.  7]  DEBT.  105 

of  pleading  when  tlic  defendant  relies  upon  the  length  of  time  as  furnish- 
ing presumption  of  payment. 

The  plea  of  payment  is  that  usually  filed  where  the  party  has  no  real  de- 
fence, but  files  a  plea  to  gain  a  term  or  set  aside  an  olrice  judgment.  And 
though  only  part  of  the  debt  has  been  paid,  the  defendant  may  plead  pay- 
ment of  the  whole,  and  on  the  trial  will  have  credit  for  what  he  proves  to 
have  been  paid.  A  defence  as  to  part,  and  a  cognovit  actionem  for  the  re- 
sidue, is  therefore  not  usual  with  us.  Where  the  defendant  wishes  to  take 
this  course,  care  must  be  taken  to  plead  the  matter  correctly.  For  if  the 
defendant  makes  defence  for  the  whole,  (i.  e.  denies  the  plaintiff's  action  for 
the  whole  in  the  first  part  of  his  plea,)  and  then  pleads  payment  of  part  on- 
ly, the  plea  is  bad  and  the  plaintiff  may  demur,  for  the  facts  pleaded  do  not 
support  the  defence  made.  On  the  other  hand,  if  he  defends  or  denies  on- 
ly as  to  part,  and  in  the  subsequent  part  of  his  plea  pleads  payment  of  that 
part,  or  even  of  more,  the  plaintiff  may  take  judgment  by  nil  dicit  as  to  that 
part  not  denied  in  the  commencement  of  the  plea.  If,  instead  of  this,  he 
demurs,  he  discontinues  his  suit,  and  must  go  out  of  court  as  to  the  whole. 
1  Chitty,  509,  510. 

By  the  law  of  Virginia  it  is  now  required  that  the  defendant  shall  file  with 
his  plea  an  account  stating  distinctly  the  nature  of  the  payment,  and  the 
several  items  thereof,  "  unless  the  same  be  so  plainly  and  particularly  de- 
scribed in  the  plea  as  to  give  the  plaintiff  full  notice  of  the  character  there- 
of." 1  R.  C.  ch.  128,  §  87.  See  Phil.  Ev.  145,  &c.  as  to  the  doctrines  in 
relation  to  a  bill  of  particulars.  We  have  a  decision  in  our  courts  on  the 
late  statute  just  quoted.     4  Ran.  488. 

Under  the  plea  of  solvit  ad  diem,  the  doctrines  of  presumption  of  payment 
from  lapse  of  time,  often  come  in  question.  As  where  a  bond  has  been  suf- 
fered to  lie  dormant  for  twenty  years,  payment  may  be  and  ought  to  be  pre-* 
sumed* :  4  Bur.  1963.  1  T.  R.  -270;  (and  this  is  the  principle  in  equity 
as  well  as  at  law.  5  John.  C.  540.  12  Vez.  252.  2  Vez.  jr.  11,  272.) 
The  court  ought  to  instruct  the  jury  to  that  effect  where  twenty  years  have 
elapsed  and  the  presumption  arising  therefrom  is  not  rebutted  by  evidence  ; 
for  that  presumption  is  sufficient  of  itself  to  entitle  the  defendant  to  a  ver- 
dict. But  where  the  time  falls  short  of  twenty  years,  then  it  is  not  of  itself 
sufficient,  but  it  must  be  accompanied  by  some  evidence  other  than  mere 
length  of  time,  in  order  to  raise  the  presumption;  such  as  having  settled  an 
account  in  the  intermediate  time — or  the  obligee  being  poor  and  the  obligor 
indepen  lent — or  the  parties  residing  in  the  immediate  neighborhood  of 
each  other,  without  any  demand  being  made,  &c. — and  in  these  cases  the 
presumption  must  be  left  to  the  jury.  The  evidence  must  be  more  or  less 
strong  in  aid  of  the  presumption,  as  the  time  is  more  or  less  short  of  twenty 
years  ;  for  it  must  be  observed  that  it  is  said  to  have  been  left  to  the  jury 
to  presume  payment  where  the  lapse  of  time  was  only  sixteen  years;  though 
there  must  be  strong  circumstances  to  satisfy  the  presumption  in  such  case. 
There  is,  however,  a  material  distinction  between  length  of  time  operating 
as  a  bar,  (as  in  the  case  of  the  act  of  limitations,)  and  length  of  time  merely 
creating  a  presumption  of  payment.  The  former  is  positive;  the  latter  be- 
ing only  presumptive,  may  be  rebutted  by  evidence  ;  6  John.  C.  137.  5 
John.  C.  545  ;  such  as  proof  of  defendant's  recent  acknowledgment  of  the 
debt,  or  proof  of  payment  of  interest  within  twenty  years,  which  is  an  ad- 
mission that  the  principal  was  then  unp'iid, — or  proof  of  demands  made 
within  the  time — or  of  a  suit  brought  and  the  writ  returned  non  est  inventus 
— or  that  during  part  of  the  time  the  plaintiff  was  an  alien  enemy,  and  dis- 

*  This  presumption  from  length  of  time  prevails  in  otiier  cases,  as  in  the  case  of  slavps  lirought  in- 
to the  stale  and  residing  here  twenty  years.  Compliance  with  the  law  raay,  in  such  cases,  be  pre-' 
Buaied.    4  Ran.  609. 

VOL.  5^—14 


lOG  1>E^BT.  [BOOKSi 

sbled  to  sue  (2  Cranch,  180,  181.  4  Cranch,  420,)— or  that  the  courts  of 
justice  were  closed,  and  the  country  in  the  tumult  and  confusion  of  war 
and  revolution.     10  John.  R.  417. 

With  respect  to  the  j)roof  of  payment  of  interest  to  rebut  the  presump- 
tion, a  receipt  or  credit  entered  on  the  bond  in  the  hand  of  the  obligor,  is 
clearly  good.  And  though  the  endorsement  of  the  obligee  would  certainly 
not  be  evidence  in  his  behalf  if  made  o/^er  he  was  in  danger  of  the  presump- 
tion, yet  his  endorsement  of  the  payment  of  interest  is  evidence  to  repel 
the  presumption,  if  proved  by  extrinsic  evidence  to  have  been  made  at  a 
period  when  it  was  against  his  own  interest  to  make  such  endorsement 
falsely,  as  where  it  was  made  within  the  time  when  the  presumption,  aided 
by  circumstances,  will  bar.     See  Philips,  114  to  117.     Sir.  827. 

On  this  plea,  also,  the  question  of  the  application  of  payments  arises. 
Thus  where  the  plaintiff  has  two  claims  against  the  defendant,  and  a  pay- 
ment is  made  by  the  latter  ; — to  which  of  the  demands  shall  it  be  applied  ?  * 
The  rule  seems  to  be,  that,  at  the  time  when  the  payment  is  made  by  the 
defendant,  he  has  the  right  to  direct  to  which  of  the  plaiMtifTs  claims  it  shall 
be  applied  ;  for  having  the  control  of  the  fund  about  to  be  paid,  he  has  the 
power  to  retain  it  unless  it  be  applied  as  he  directs ;  and  if  the  creditor  ac- 
cepts it  under  such  direction,  he  assents  to  it.  But  where  the  debtor  fails 
to  direct  the  payment,  the  control  is  gone  from  him,  and  the  right  of  appli- 
cation devolves  on  the  creditor.  7  Cranch,  575.  4  Cranch,  317.  1  Wash. 
133.  This  right,  it  is  said,  he  ought  to  exercise  "  recently,  by  entries  on 
his  books  or  papers  ;"  1  Wash.  133;  though  in  another  case  it  is  stated 
not  to  be  necessary  to  make  the  application  immediately.  4  Cranch,  320. 
However  this  be,  he  is  bound  by  it  after  he  once  makes  it.f  Ibid.  And  if 
neither  party  makes  the  application,  the  court  will  ap[)ly  the  payments  to 
the  debts  for  which  the  security  is  most  precarious;  6  Cranch,  9;  and  this 
upon  the  principle  that  all  the  debts  ought  to  be  paid.  Or,  if  one  demand 
be  legal  and  the  other  usurious,  the  payment  will  be  applied  to  the  former. 
3  Bar.  &  Cres.  165.  If,  however,  there  is  any  particular  relation  between 
the  fund  out  of  which  the  payment  is  made,  and  either  of  the  demands,  or 
if  a  special  application  is  required  by  the  nature  of  the  transactions,  (14 
East,  239.  Peake's  N.  P.  64,)  it  shall  be  api)lied  to  that.  As  if  there  be 
a  mortgage  and  open  account,  funds  raised  by  sale  of  the  mortgaged  pre- 
mises shall  be  applied  to  the  mortgage.  See  1  Vcrn.  468.  See,  also,  a 
disquisition  of  Sir  William  Grant  on  the  application  of  payments,  1  Meriv. 
605;   and  1  Polhier.  328,  on  the  imputation  of  payments. 

It  may  here  be  added,  that,  where  there  is  but  a  single  demand,  and  a 
payment  is  made,  it  shall  always  be  applied  to  the  discharge  of  the  interest  t 
due  on  the  demand,  in  the  first  place,  and  the  residue  only  goes  to  the  cre- 
dit of  the  principal :  nor  do  I  presume  the  direction  of  the  debtor  could  or- 
der it  otherwise  :  for  it  is  but  just  that  the  payment  should  be  applied  to  that 
portion  of  the  demand  which  does  not  carry  interest. 

The  student  will  observe  that  the  general  rule  as  to  application  of  pay- 
ments does  not  hold  where  the  receiver  is  a  public  oflicer,  not  interested  in 
the  event  of  the  suit,  but  receiving  the  money  of  the  public  ;  and  where, 
too,  the  payments  are  indiscriminately  made,  and  different  securities,  under 

"  In  cases  (iisof  a  bnnking  account)  wlirroiliPie  li:is  l>ecti  aconliiiunlion  of  dealings,  llie  appropri- 
tion  'In  llie  al)Hcnce  of  express  dpclaralion,)  c.ki  onlv  I)p  made  on  tlic  ijiouiidol  pre.sumplion  aricing 
from  llie  priority  of  recfipis  and  pavnioni:!.  1  Merivale,  frJll.  And  so  ulicre  surviving  partner  carries 
en  the  dealinijs  widi  tlie  creditor  who  joins  the  transactions  o(  tlie  old  and  new  firra  in  one  entire  ac- 
count, paynientii  inust  be  applied  fiiH  to  tiie  old  debt.     2  Barn.  &.  Cres.GS. 

t  But  it  is  said  he  is  not  cuncludcil  uuless  liic  appropriation  is  cotuinunicated  to  the  payer.  2  Barn. 
&,  Cres.  C5. 

t  By  the  citil  law  as  well  as  by  ours,  the  application  is  to  be  made  to  the  interest  before  the  prinrj- 
prI,  ihoouh  tlie  acquiuance  imports  it  to  be  paid  to  account  of  principal  and  interest.    1 1'othier,  Obi.. 


CHAP.  7.]  DEBT.  107 

distinct  obligations,  are  interested.  7  Cranch,  575.  It  would  seem  that 
in  such  cases  the  court,  by  reference  to  the  collector's  (i.  e.  the  debtor's) 
books  and  other  evidence,  will  endeavor  to  effect  justice  between  the  differ- 
ent securities,  by  applyingto  the  credit  of  each  bond  the  moneys  collected 
under  it. 

The  defendant  may  plead  also  that  the  debt  has  been  attached  in  his  hands 
by  foreign  attachment,  under  the  provisions  of  the  act  1  R.  C.  ch.  123,  §  1. 
See  1  Esp  231.  This  is  clearly  a  good  plea  in  bar  where  there  has  been  a 
decree  in  the  attachment  cause,  and  the  money  paid  under  it.  And  so  it  is 
though  the  attachment  were  in  a  foreign  country.  4  John.  C.  466.  But  if 
the  bond  be  assigned  and  notice  given  to  the  obligor,  or  suit  on  it  be  brought 
by  an  assignee,  to  whom  it  was  regularly  assigned  before  the  attachment, 
the  plea  is  not  good  ;  for  by  the  assignment  the  bond  ceased  to  be  liable  to 
attachment  for  the  assignor's  debt.  4  H.  &  M.  259.  For  if  the  assignment 
was  anterior  to  the  attachment  it  passed  the  right  ;  and  though  the  obligor 
had  no  notice  of  it  till  after  the  attachment  suit  was  commenced,  or  even 
till  after  a  decree,  yet  if  he  had  notice  at  any  time  before  payment,  he  will 
not  be  protected  by  a  plea  of  these  facts,  though  he  may  have  paid  the  mo- 
ney;  for,  upon  receiving  the  notice,  he  might  have  immediately  taken  mear 
sures  to  suspend  the  decree.     See  5  Mun.  178. 

Under  this  plea  it  has  been  somewhat  contested  what  amounts  to  a  re-' 
straining  order.  An  endorsement  by  the  clerk  on  the  subpaina  in  chancery, 
is  clearly  sufficient,  according  to  the  decision  of  our  courts.  4  H.  &  M, 
259.  6  Mun.  176.  But  it  is  still  left  uncertain  whether  the  endorsement 
hy  the  attorney  of  the  plaintiff  is  so  ;  2  Mun.  55;  though  it  is  probable, 
from  the  reasons  given  in  the  case  in  6  Munford,it  would  be  deemed  equiv- 
alent to  the  endorsement  of  the  clerk,  which  only  operates  as  notice. 

I  tind  no  adjudicated  case  upon  the  question  whether  the /(enrfency  of  the 
foreign  attachment  should,  before  a  decree  thereon,  be  pleaded  in  abate- 
ment or  in  bar.  The  plea  in  bar  would  seem  inadmissible,  because  until  a 
decree  it  is  left  uncertain  whether  the  attachment  may  not  be  discharged, 
and  if  it  be,  then  the  plaintiff  would  have  a  right  of  action.  I  presume, 
therefore,  the  plea  should  be  in  abatement,  for  it  is  in  its  character  but  a 
plea  of  the  pendency  of  another  suit,  which  should  be  pleaded  in  abatement 
except  in  a  quitam  action. 

It  is  said  that  in  England  a  debt  cannot  be  attached  by  foreign  attachment 
before  it  is  due.  1  Esp.  231.  It  is  otherwise  here  ;  6  Mun.  176;  and  the 
property  in  the  hands  of  the  garnishee  is  bound  from  the  service  of  the 
subpoena,  so  as  to  prevent  an  assignment  or  transfer  of  the  debt  by  the  ab- 
sent defendant.     Ibid. 

The  defendant,  where  a  debt  is  attached  in  his  hands,  and  the  attachment 
is  afterwards  discharged,  cannot  protect  himself  from  payment  of  interest 
while  the  order  remains  in  force,  if  he  retained  the  money  in  his  hands.  1 
Wash.  145.  He  ought  (in  order  to  have  absolved  himself  from  interest)  to 
have  brought  the  money  into  court  to  abide  its  order — and  the  court  would 
have  directed  it  to  be  put  out  to  interest />e7idcn<e  lite,  so  as  to  avoid  loss  to 
the  parties.     4  H.  &  M.  265. 

In  debt  on  a  bond  of  indemnity,  besides  other  pleas  common  to  an  action 
of  debt,  the  defendant  may  pray  oyer  of  the  condition  of  the  bond,  and 
plead  non  damnificatus ;  or  he  may  plead  that  he  has  saved  the  plaintiff  harm- 
less ;  but  in  that  case  he  must  shew  in  his  plea  how  he  has  done  so.  1 
Chitty,  356.  1  Esp.  233.  The  omission,  however,  can  only  be  taken  ad- 
vantage of  by  special  demurrer.  See,  on  the  subject  of  bonds  with  collate- 
ral condition,  and  the  mode  of  assigning  breaches  of  them  under  the  statute, 
Book  2,  Obligations,  and  the  cases  there  cited. 


iOS  DEBT.  [cook  3. 

\  Of  the  pleas  in  debt  for  renl.  The  plea  of  nil  habuit  in  ienementis  is  not 
admissible,  as  I  have  elsewhere  said.  Nor  is  the  plea  of  non  deniisit  a  good 
plea,  where  the  rent  is  reserved  by  indenture  ;  to  debt  for  rent  reserved  by 
parol  it  is.  The  distinction  arises  from  the  deed  being,  in  the  first  case,  an 
estoppel. 

Where  the  rent  is  alleged  to  be  due  by  indenture,  non  est  factum  may  be 
pleaded;  but  as  the  indenture  is  only  inducement,  and  the  fact  of  the  en- 
joyment of  the  premises  the  foundation  of  the  action,  the  defendant  may 
also  plead  nil  debet ;  for  the  deed  in  such  case  does  not  operate  as  an  es- 
toppel. The  statute  of  limitations  is  also  a  good  plea  in  this  action  (or 
rent,  notwithstanding  it  be  reserved  by  deed,  for  it  is  so  expressly  provided 
by  the  act. 

Entry  and  eviction  is  also  a  good  plea  in  debt  for  rent.  The  principles 
of  this  defence  have  been  shown  elsewhere. 

There  are,  besides  these,  certain  pleas  which  are  applicable  to  actions  of 
debt  on  bonds,  or  on  judgments,  or  lor  rent.  Such  is  a  release,  of  which  it 
is  here  only  necessary  to  say,  that  it  must  be  specially  j)leaded  ; — and  to 
remind  the  student  that  a  release  to  one  of  the  several  parties  bound,  is  a 
release  to  all  ;  for  it  releases  the  contract.  The  difierence  between  a  re- 
lease and  a  covenant  not  to  sue,  is  elsewhere  adverted  to. 

A  discharge  under  the  bankrupt  law  of  the  United  States  is  a  good  plea  in 
bar  of  an  action  of  debt  on  a  bond  bearing  date  before  such  discharge.  But 
a  discharge  under  a  state  insolvent  law,  whether  from  imprisonment  only,  or 
from  the  debt,  is  no  discharge  of  debts  due  at  the  time  of  the  insolvency, 
and  therefore  it  affords  no  good  ground  for  a  plea  to  this  action  ;  4  Wheat. 
1'22,  &c. ;  except  in  cases  of  contracts  subsequent  to  such  insolvent  act, 
and  between  citizens  of  the  state  by  which  it  was  enacted.  1-2  Wheat. 
213.  Nor  is  such  discharge  under  a  foreign  bankrupt  law,  a  bar  to  an  ac- 
tion on  a  contract  made  in  this  country  prior  to  the  bankruptcy.  4  Wheat. 
209. 

The  plea  of  a  set-off  or  discount.  The  act  of  1806  provided  that  in  all 
actions  of  debt  the  defendant  should  have  liberty,  on  the  trial,  to  make  all 
discounts  that  he  could  against  the  demand.  1  R.  C.  ch.  127,  §  1.  This 
act,  it  seems,  did  not  require  a  notice  or  plea.  See  1  Wash.  4-2,  223.  But 
a  subsequent  act  requires  the  defendant  to  file  with  his  plea  an  account 
."fating  distinctly  the  nature  of  the  set-off,  and  the  several  items  thereof; 
and  unless  he  does  so,  he  can  give  no  evidence  of  his  discount.  1  R.  C. 
ch.  128,  §  87.     See  4  Rand.  488. 

The  law  of  set-offs  was  enacted  to  prevent  multiplicity  of  suits,  and 
therefore  permits  a  defendant,  instead  of  bringing  a  cross  action  to  recover 
■what  may  be  due  to  him  from  the  plaintiff,  to  plead  his  offsets,  and  give  no- 
tice by  the  account  filed  with  his  plea  of  the  items  of  offset.  The  offset 
is  therefore  in  effect  a  cross  action ;  the  plea  of  offset,  is  but  the  defend- 
ant's declaration  setting  forth  his  claim  against  the  plaintiff,  and  should 
therefore  be  expressed  with  clearness  and  certainty  to  enable  the  plaintiff 
to  make  a  proper  defence  against  it.  1  Scllon's  Prac.  3-29.  Bull.  179.  See 
also  4  Mun.  442.  In  furtherance  of  the  object  of  the  law,  the  discounts 
are  allowed  up  to  the  time  of  the  trial,  (1  Wash.  10.  5  Mun.  395,)  but  not 
.so  as  to  destroy  the  plaintiffs  action,  and  entitle  the  defendant  to  costs. 
Ibid.  If  therefore,  after.'-uit  brought,  the  defendant  buys  bonds  due  by  the 
plaintiff,  though  ho  may  discount  them  on  the  trial,  there  will  be  a  judgment 
fur  costs  against  liim. 

The  law  of  sel-olfs,  however,  Iniving  been  introduced  from  a  principle  of 
convenience  and  benefit  to  suitors,  it'  has  been  so  construed  as  to  avoid 
making  it  an  engine  of  mischief.  Hence  it  has  been  always  held  that  cross 
demands  for  unliquidated  damages  caji  never  be  set-off  against  each  other, 


CHAP.  7.]  DEBT.  109 

nor  can  such  a  demand  be  offset  against  an  action  of  debt,  or  be  subject  to 
the  offset  of  an  action  of  debt.  Cow.  56.  6  T.  R.  488.  2  Cranch,  342. 
Nor  can  unliquidated  demands,  be  set  off  in  equity.  4  John.  C.  287.  3 
John.  C.  251.  G  Ran.  519.  Except,  I  presume,  where  the  party  against 
whom  the  set-off  is  sought  is  insolvent  or  likely  to  become  so.  And  this 
upon  the  principle  of  bills  quia  timet.  If,  indeed,  unliquidated  demands 
were  permitted  to  beset  off,  many  difficulties  would  ensue,  and  the  trial  be 
rendered  extremely  complicated  and  embarrassing.  The  debts,  therefore, 
which  may  be  set  off,  must  be  such  as  are  certain  and  liquidated.  They 
must  be  sucli,  at  least,  as  assumpsit  would  lie  for.  Ibid.  2  Cranch,  344. 
But  sums  in  the  nature  of  liquidated  damages  for  breach  of  an  agreement, 
and  not  in  the  nature  of  a  penalty  merely,  may  be  set  off:  as  where  the 
plaintiff  agreed  to  do  certain  work  in  a  given  time,  and  to  pay  £10  for  every 
week  it  remained  unfinished.  The  weekly  sums  which  were  proved  to  have 
become  due,  were  held  to  be  proper  set-offs.  2  T.  R.  32.  Nor  is  it  in 
conflict  with  this  rule,  that  if  a  workman  sues  on  a  quantum  meruit,  the  de- 
fendant may  shew  that  the  work  done  was  not  worth  so  much  as  the  plain- 
tiff claims  ;  or  that  it  was  worth  nothing;  for  this  is  not  so  much  an  offset 
of  a  claim  of  the  defendant,  as  a  contesting  of  the  consideration  of  the 
plaintiff's  demand.     See  7  E.  479.     3  Camp.  Ca.  451. 

Neither  will  the  law  permit  set-offs  to  work  injustice  ;  as  to  subject  the 
plaintiff  to  costs  where  he  had  no  notice  of  them  before  action  brought,  or 
to  occasion  his  being  nonsuited  by  reducing  his  claim  below  the  jurisdiction 
of  the  court.  Larrow  vs.  Harding's  administrators,  General  Court,  June, 
1820.  Virginia  cases,  131.  2  Str.  1191.  Nor  will  they  be  countenanced 
even  in  equity,  so  as  vexatiously  to  perplex  or  delay  the  plaintiff;  as  where 
the  debtor,  after  suit  instituted,  buys  up  unliquidated  and  disputed  claims 
against  his  creditor,  thus  attempting  to  arrest  a  simple  demand  by  entan- 
gling it  with  a  complicated  transaction.  3  Call,  105.  1  Mun.  529.  Nor 
does  the  defendant  acquire  an  advantage  by  a  set-off,  which  he  could  not 
have  had  if  he  had  brought  his  action.  For  if  his  demand  is  barred  by  the 
act  of  limitations,  or  is  tainted  v/ith  usury  or  gaming,  it  cannot  be  set  off, 
as  he  could  not  have  maintained  an  action  for  it.  In  these  cases,  however, 
Ihe  plaintiff  should  reply  the  statutes  of  limitations,  usury  and  gaming,  res- 
pectively. On  the  same,  (as  well  as  on  another  principle,)  if  at  the  sale  of 
a  testator's  estate,  one  of  his  creditors,  by  open  account  or  by  bond,  makes 
a  purchase  and  is  sued  for  the  amount  of  it,  he  cannot  offset  his  claim  on 
the  testator's  estate  ;  for  peradventure  the  assets  (including  the  amount  of 
his  purchase)  may  not  be  more  than  sufficient  to  pay  debts  of  superior  dig- 
nity to  his  ;  and  so  if  the  offset  were  permitted  he  would  be  better  off  than 
if  he  had  brought  his  cross  action,  while  on  the  other  hand  the  executor 
would  hereby  be  made  to  commit  a  devastavit.  See  1  Wash.  166,  221. 
Willes,  103,  264.     See  4  John.  Ch.  Rep.  11,  13. 

It  must  be  observed,  however,  that  where  an  executor  sues  for  a  debt  due 
to  his  testator  in  his  lifetime,  the  defendant  may  set  off  a  debt  due  to  him 
from  the  testator  before  his  death,  for  these  are  strictly  in  the  same  right, 
and  the  defendant  was  in  fact  only  debtor  for  the  difference.     Bui.  179. 

The  debts  which  are  set  off  must  be  mutual  and  due  in  the  same  right. 
4  John. C.  13.  3John.  C.  351.  3  Me  ri  v.  248.  3Vez.248,  llVez.24, 
517.  12  Vez.  346.  18  Vez.  2-32.  In  2  Meriv.  121,  the  master  of  the 
rolls  said  the  same  rule  prevails  in  equity.  This  is  one  reason  that  a  de- 
mand against  a  testator  cannot  be  set  off  against  the  demand  of  the  execu- 
tor for  the  testator's  goods  sold,  or  for  rent  accruing  in  his  own  time.  Nei- 
ther can  the  individual  debt  of  a  partner  be  set  off  against  a  partnership  de- 
mand ;  1  H.  &M.  476;  1  Wash.  79;  for  if  the  defendant  sued  for  his 
separate  demand,  it  might  turn  out  that  after  the  payment  of  partnership 


110  DEBT.  [book  3. 

debts,  his  debtor  would  have  no  funds  in  the  partnership.  Nor  in  an  action 
against  a  partnership  can  the  debt  due  by  the  plaintiff  to  one  of  the  part- 
ners be  set  off.  5  Mun.  388.  Nor  can  a  demand  against  a  partnership  be 
set  off  at  law  against  a  debt  due  to  one  of  the  partners.  4  Ran.  359.  Yet 
see  6  Mun.  34.  Nor  can  a  man  set  off  against  his  own  bond,  a  debt  due 
to  his  wife;  Bull.  179;  for  until  it  be  actually  recovered  and  received,  it 
belongs  to  him  only  in  her  right,  and  if  he  dies  before  her,  it  survives  to  her. 
On  the  other  hand,  her  debts  dum  sola  cannot  be  set  oft'  against  a  claim  due 
to  himself,  for  if  she  dies  he  is  no  longer  responsible  for  her  debts. 

Nevertheless  debts  due  to  or  from  a  surviving  partner,  may  be  set  off  by  or 
against  liim,  against  a  debt  due  to  or  from  him  in  his  own  right.  5  T.  R. 
493.  6  T.  R.  582.  For  the  surviving  partner,  though  accountable  to  the 
representatives  of  the  deceased,  is  sole  legal  owner  of  the  partnership  debts, 
and  may,  indeed,  join  in  the  same  action  a  demand  as  surviving  partner, 
with  an  individual  demand  of  his  own.     See  3  T.  R.  435. 

Judgments  may  be  set  off  against  each  other,  as  well  as  against  other  de- 
mands. The  party  desiring  the  set-oft' applies  for  a  rule  on  his  adversary 
to  shew  cause,  if  there  be  any,  why  the  judgments  should  not  be  offset,  and 
unless  cause  is  shewn,  it  is  ordered  accordingly.  And  judgments  of  dif- 
ferent courts  may  thus  be  set  off  aganist  each  other.      1  Esp.  241. 

If  the  offset  is  of  a  less  sum  than  the  plaintiff  is  entitled  to,  the  defend- 
ant prays  to  have  it  set  off,  and  judgment  goes  against  him  for  the  balance. 
If  it  be  equal  to  the  plaintiff's  claim,  it  is  then  a  bar.  If  it  be  greater,*  the 
action  is  barred,  and  the  plaintiff's  demand  will  stand  as  a  credit  to  him  in 
any  future  action  brought  by  the  defendant  against  him.  But  in  cither  of 
these  last  cases  if  the  offset  was  procured  since  the  action  brought,  the 
plaintiff' will  recover  his  costs. 

Where  the  defendant  pleads  as  an  offset  the  plaintiff's  liability  to  him  as 
assignee  of  a  bond,  he  must  aver  and  prove  due  diligence  and  the  insolven- 
cy of  the  obligor  in  the  assigned  bond.     3  Call,  9. 

The  defendant  in  an  action  by  an  assignee  of  a  bond,  cannot  offset  any 
demand  of  his  own  against  the  assignor,  acquired  after  he  had  notice  of  the 
assignment.     5  Mun.  388. 

It  must  be  observed,  however,  that  courts  of  equity  often  permit  discounts 
which  are  rejected  at  law.  Thus  in  all  the  cases  of  partnerships  before  put,  a 
court  of  equity  will  examine  the  state  of  the  accounts,  and  allow  or  reject 
the  discount  according  as  the  accounts  appear.  See  6  Mun.  34. t  This 
subject  cannot  be  enlarged  upon  in  this  place. 

*Tlie  pica  of  set-o/T  in  lliis  case  is  to  tliiseffect:— "  And  the  said  defendant  comes  and  defends  the 
wrong  and  injiirv,  wlien,  &:c.  and  savsthat  ihe  plaintiff,  iiits  action  aforesaid  against  liiin,  ought  nut  to 
liave  and  inalntaiii,  because  he  says  liiat  at  I  lie  lime  of  issuing  the  original  writ  in  tins  aeliuii,  there 

was  due  on  the  writing  oliligatory  in  llie  declaration  mentioned,  a  certain  gum,  to  wit:  $- ,  for 

principal  and  interest,  and  that  lielore  and  at  tliat  lime  the  plaintifi"  wa?  indebted  lO  the  said  defend- 
ant in  a  much  larger  fuiii  of  money,  to  wit:  tlie  sum  of  § ,  due  by  [here  stale  the  in:inner  it  is 

due— 1(  by  Ijonil,  describe  it  as  if  in  a  declaration — if  by  account,  elate  l<:>r  what,]  whicli  c<aid  sum 
iti  wIidIIv  unpaid,  and  exceeds  the  sum  due  and  owing  to  liie  plaiiitilT,  as  alorcsaid,  on  the  said  liond  ; 
and  wliirli  said  sum  so  due  from  the  plainlift',  or  so  much  thereof  as  shall  be  necessary  in  tins  behalf, 
the  Kaid  delendant  is  ready  and  oflers  to  sel  ofl'aiid  allow  against  llie  sum  due  to  tlie  plainliff  by  the 
wniiiig  in  llie  derlaraiioii  mentioned,  accoidiiig  lo  ihe  lorm  of  the  statute  in  that  case  made  and  pro- 
vided; and  tliis  he  in  ready  lo  verily,  wherefore  hepravs  jiidgineiit,"  &.C. 

The  (orm  of  the  plea  where  the  sums  are  equal,  is  but  lillle  difl'erent  from  the  foregoing.  Where 
the  sum  is  less,  if  tlieofTsejt  is  pleaded,  the  ddciidani  should  ofl'er  to  offset  so  much  as  is  really  dua 
to  liim,  and  plead  only  as  to  liie  balance.  'l"he  usual  course,  however,  in  such  case,  is  to  plead  pay- 
ment and  give  notice  of  sclofl".  'I'he  notice  of  sct-otT,  though  in  the  form  of  a  notke,  is  olherwise 
pretty  muclilike  the  plea.  In  liCliitly.  441,  may  be  found  the  form  iu  the  action  of  aMUoipsit,  whicll, 
li  easily  moulded  so  as  to  suit  the  action  of  debt. 

t'lMiis  case  is  questioned,  2  Leigh,  505  It  seems  clear,  however,  that  set-offs  were  allowed  in 
equity  before  the  siatiiie.  11  V^ez.  ii4.  19  Vez.  467.  It  seems,  also,  that  an  accommodation  indoiser 
liaviiig  money  of  the  drawer's  in  his  hands,  may,  in  case  of  reasonable  apprehension  of  iiisulvencyi 
reiain  nnlil  indemnified.  Chilly  on  bills,  J47.  t>ee,  also,  Harkevrs.  Smilh,  3  T.lt.507,aud  ;i  I.eiKh, 
b'JH,  riling  1  Alk.  2.W.  In  Feagle  r?.  Dillaid,  decided  in  ihe  court  of  appeals  in  l;i34,  il  seemed  lo  be 
aereed  thai  it  a  creditor  by  judgment  be  insolvent,  llie  debtor  might  injoio  for  the  Uiuouut  yf  a  bond 
of  lUc  creditorii  which  he  held,  thou^^h  it  Avaa  not  yet  due. 


cSiAP.  7.]  OEBT.  Ill 

Of  the  plea  with  reference  to  the  person.  First— against  the  heir.  This 
action,  we  have  seen,  lies  against  the  heir  upon  the  bond  of  the  ancestor, 
where  the  heir  is  expressly  bound  therein,  and  hath  assets  by  descent.  It 
is  considered  as  the  heir's  own  debt  in  respect  of  the  assets,  and  he  is 
therefore  charo-eable  in  the  debet  and  delinet,  though  the  omission  to  charge 
him  in  the  debet  is  not  fatal  on  a  general  demurrer,  and  is  cured  by  a  verdict. 
2  Mun.  88.  If  the  defendant  is  the  immediate  heir  of  the  obligor,  the  de- 
claration is  against  him  as  heir  generally,  but  if  he  is  sued  as  heir  of  the 
heir,  he  should  be  charged  as  such  if  the  intermediate  heir  has  had  seizin, 
thouirh  it  is  not  necessary  to  show  how  he  is  heir,  as  that  may  not  lie  with- 
in the  knowledge  of  the  plaintiff.  2  Mun.  88.  2  Saun.  7,  n.  4.  See, 
however,  2  Selw.  523. 

In  this  action  against  the  heir  of  the  obligor,  the  whole  of  the  heirs  should 
be  parties,  and  where  the  writ  was  against  four,  and  the  declaration  only  a- 
gainst  three,  it  was  held  an  incurable  defect,  for  thus  the  judgment  would 
place  the  whole  burden  on  part  only  of  those  who  are  chargeable  ;  4  Mun. 
94;  whereas  they  seem  to  be  only  chargeable  ;iro  rata.  See  1  Mun.  437, 
440,  446.  See,  also,  3  Mun.  514.  Hence,  if  one  be  sued  without  the  oth- 
ers, he  may  plead  that  matter  and  pray  judgment  whether  he  ought  farther 
to  answer  until  the  others  are  summoned.  3  Co.  12,  15.  2  Saun.  8,  note 
10.  See,  also,  2  Bac.  Execution,  page  696.  He  is  entitled  to  contribution 
not  merely  by  compelling  his  co-heir  to  refund  what  he  may  have  been  com- 
pelled to  pay,  but  by  compelling  the  creditor  to  proceed  against  the  co- 
heir.    Id. 

In  order  to  understand  the  principles  of  this  action,  it  is  necessary  to  re» 
member  that  the  heir  by  common  law  was  bound  by  reason  of  assets  de- 
scended ;  and  on  a  judgment  against  him,  the  whole  of  the  land  descended 
was  delivered  to  the  plaintiff  in  execution  ;  and  not  a  moiety  only,  as  would 
have  been  the  case  on  a  judgment  against  the  ancestor  himself.  But  he 
was  only  chargeable  where  the  creditor  commenced  his  suit  before  any 
alienation  of  the  land  which  he  inherited.  It  is  true  that  from  the  time  of 
the  commencement  of  the  action,  that  land  was  bound,  so  that  a  pendente 
lite  purchaser  held  subject  to  the  claim  :  2  Bac.  Execution,  I.  Co.  Litt.  102, 
b:  but  if,  before  action  brought,  the  heir  aliened  bona  fide  and  for  valuable 
consideration,  the  lands  were  not  bound  in  the  hands  of  the  alienee.  3 
Bac.  Heir  &  Ancestor,  F.  If,  however,  the  deed  was  fraudulent  or  volun- 
tary, it  would  have  been  otherwise,  and  the  creditor  might  have  had  his 
judgment  against  the  land  itself,  and  taken  out  execution  accordingly.  2 
Saun.  7,  n.  4.  Nor  was  the  heir  himself  personally  responsible  at  law, 
(though  it  was  otherwise  in  equity,)  by  reason  of  the  assets  so  aliened.  Ibid. 
Hence  arose  the  defence  of  the  heir  at  common  law,  •'  that  he  had  no  as- 
sets by  descent  at  the  time  of  suing  out  the  writ."  This  was  the  usual  plea,- 
and  the  creditor  was  defrauded  of  his  rights  by  the  heir's  disposition  of  the 
property.  To  remedy  this  evil,  the  English  statute  and  our  own  act  of  as- 
sembly (I  R.  C.  ch.  105)  were  made.  The  latter  provides  that  where  the 
heir  so  aliens  before  action  brought,  he  shall  be  answerable  in  an  action  of 
debt  to  the  value  of  the  assets  aliened,  but  the  lands  themselves,  if  bona  fide 
sold,  shall  not  be  liable  to  execution.  1  R.  C.  eh.  105,  §  6.  Had  the  act 
gone  no  farther  it  would  have  put  an  end  to  the  common  law  plea,  of  "no 
assets  at  the  time  of  the  writ  purchased."  But  it  did  proceed  to  authorize 
the  heir  who  had  aliened  before  action  brought,  still  to  plead  this  common 
law  plea;  and  it  further  permitted  the  plaintiff  to  reply,  "assets  before  the 
writ  brought  or  bill  filed,"  on  which  the  defendant  either  confesses  the  mat- 
ter or  takes  issue. 

The  effect  at  common  law  of  a  false  plea  or  an  omission  to  confess  the 
assets  descended,  seems  to  have  been  at  one  time  matter  of  dispute.     But- 


112  DEBT.  [book  3. 

it  appears  sufficiently  established  that  if  the  heir  pleaded  a  false  plea,  (ex- 
cept non  est  factum,)  or  did  not  confess  the  action  and  shew  the  certainty 
of  the  assets,  but  pleaded  "  nothing  by  descent,"  or  suffered  judgment  by 
default,  or  nil  dicit,  or  confession,  without  confessing  and  shewing  the  cer- 
tainty of  the  as^sots,  the  judgment  went  against  him  as  for  his  own  debt. 
Plow.  440.  Inasmuch,  however,  as  such  a  general  judgment,  as  for  his 
own  debt,  would  only  reach  a  moiety  of  the  lands  of  the  heir,  it  would,  where 
the  heir  had  no  other  lands  than  those  descended,  have  been  less  beneficial 
than  a  special  judgment  against  them,  since  this  would  seize  the  whole. 
Hence  it  was  held  that  though  the  heir  did  not  confess  the  certainty  of  the 
assets,  the  plaintiff  might  himself  suggest  that  the  heir  had  particular  lands 
by  descent,  and  pray  execution  of  the  whole  of  them  accordingly.  Saun- 
ders, ubi  supra. 

The  statute,  however,  has  made  no  small  alteration  in  this  respect.  For 
if  the  heir  pleads  "no  assets  at  the  time  of  the  writ  purchased,"  and  the 
plaintiff  replies  "assets  before,"  and  the  defendant  takes  issue,  thus  in  ef- 
fect denying  assets  before,  yet  he  shall  be  liable  only  to  the  value  of  the 
lands,  instead  of  being  made  liable  for  the  whole  debt,  whether  the  assets 
were  adequate  to  its  discharge  or  not.  The  judgment,  however,  is  in  such 
case  as  for  his  own  debt.  But  if  the  judgment  be  given  against  the  heir  by 
confession  of  the  action  without  confessing  the  assets  descended,  or  upon 
demurrer  or  nil  dicit,  it  will  be  for  the  debt  and  damages,  without  any  writ 
of  inquiry  as  to  the  value,  so  that  the  heir  will  thus  be  liable  to  the  whole 
debt,  whether  the  value  of  the  lands  be  equal  to  it  or  not.  And  note — that 
the  gross,  and  not  the  annual  value,  is  to  be  estimated  by  the  jury  in  all 
cases  under  the  statute. 

If,  therefore,  the  heir  has  sold  the  land,  his  best  course  is  to  confess  the 
assets  descended,  or  to  make  the  defence  left  to  him  by  the  act,  that  is  to 
say,  to  plead  no  assets  at  the  tin>e  of  the  writ  purchased  ;  for  then  he  will 
only  be  charged  to  the  value  of  the  assets  if  the  plaintiff  replies  under  the 
statute.  This  the  plaintiff  must  do  where  the  lands  have  been  really  sold 
before  the  suit  was  commenced ;  for  the  issue  would  be  found  against  him, 
and  his  action  would  be  barred  if  he  took  issue  on  the  defendant's  plea. 
Where,  however,  in  point  ofi'act,  there  were  assets  at  the  time  the  suit  was 
brought,  the  plaintiff  may  not  only  safely  take  issue,  but  he  will  have  an  ad- 
vantage in  it  where  the  defendant  has  no  other  property  than  the  lands  de- 
scended ;  since  his  replication  not  being  under  the  statute,  his  judgment 
in  that  case  will  be  a  special  judgment  against  the  whole  of  those  lands, 
instead  of  a  general  judgment  against  the  heir,  as  for  his  own  debt  on 
which  he  can  only  extend  a  moiety.     See  3  Call,  431.     Siiun.  ubi  sup. 

If  the  heir  has  not  sold  the  lands  descended,  he  ought  (if  the  cause  of 
action  be  just)  to  acknowledge  the  action  and  confess  the  certainty  of  the 
assets.  By  this  means  the  judgment  will  be — not  against  him  personally, 
but  only  against  the  lands,  the  whole  of  which  will  be  extended.  If  instead 
of  this  he  pleads  "  no  assets  at  the  time  of  the  writ  purchased,"  the  plain- 
tiff may  either  reply  underthe  statute  and  make  him  personally  liable  to  the 
value  of  the  lands,  or  he  may  take  issue  as  at  common  law,  and  then  he 
will  have  a  judgment  for  the  whole  debt,  without  reference  to  the  value  of 
the  assets,  for  which  the  defendant  will  in  like  manner  be  personally  liable; 
though  the  plaintiff  may  have  his  judgment  entered  against  the  whole  land 
descended. 

If  the  heir,  in  truth  and  in  fact,  never  at  any  time  had  assets  by  descent, 
he  shouUl  plead  that  matter,  and  it  will  bar  the  plaintiffs  action.  If  he 
had  assets,  but  has  paid  to  the  value  of  them  debts  of  the  ancestor  which 
bound  him,  he  may  plead  that  matter  also  in  his  discharge.     1  Str.  6G5. 


CHAP.  7.  J  DEBT.  113 

Where  there  nrc  several  cohicrs,  some  of  wliom  Iiavc  aliened  and  wasted 
their  patrimony,  it  would  seem  advisable  for  the  rest  to  plead  separately, 
confessing  fairly  the  assets  they  have  received  by  descent.  Yet  it  is  matter 
of  great  difficulty  to  say,  whether  the  creditor  will  not  even  then  recover 
his  whole  debt  from  the  solvent  heirs,  provided  the  assets  descended  to 
them  be  adequate  to  its  payment.  There  seems  to  be  much  reason  and 
some  authority  for  the  doctrine,  that  each  heir  should  be  responsible  only 
for  his  proportion  of  the  debt.  For  as  the  land  of  the  heir  is  bound  from 
the  date  of  the  writ,  it  is  in  the  creditor's  power,  immediately  ui)on  the  an- 
cestor's deat!i,  to  arrest  the  alienation  by  any  heir  of  his  portion,  l)y  the 
commencement  of  suit.  As  the  injury  therefore  has  arisen  from  his  own 
laches,  and  the  other  heirs  could  not  prevent  the  waste  or  alienation  oThis 
estate  by  their  cohier,  it  would  seem  reasonable  that  the  loss  should  fall  on  the 
creditor.  This  seems  to  be  clearly  the  doctrine  of  the  civil  law,  1  Pothier, 
159,  165,  and  is  strongly  countenanced  by  the  following  authorities  :  1 
Mun.  437,  4-10,  446.  '2  Mun.  326,  32S.  3  Mun.  514.  2  Cranch,  414. 
So  too  it  is  clear  that  where  all  the  heirs  fairly  confess  the  assets  descended, 
and  the  judgment  accordingly  is  not  against  them  personally,  but  against 
the  assets  descended,  the  sheriff  cannot  take  the  land  of  one.  to  the  ex- 
emption of  the  land  of  another  ;  for  in  executions  which  concern  the  realty 
the  sheriff  cannot  do  execution  on  the  land  of  one  only.  3  Co.  14.  He 
is  not  permitted  to  deliver  in  extent  the  land  of  one  or  the  other  at  his  plea- 
sure. The  whole  must  be  taken,  and  if  it  be  not  the  party  might  be  reliev- 
ed by  audita  querela.     Id.     2  Bac.  696. 

Upon  like  principles  we  find  it  decided,  that,  in  a  decree  against  several 
devisees  in  favor  of  a  creditor,  the  decree  should  be  rateably  against  each 
for  his  proportion,  and  not  against  the  whole  jointly,  with  liberty  to  him 
who  pays  to  sue  for  contribution.  3  Mun.  514.  Though  if  the  debt  be 
enforced  from  one  ©f  several  heirs  or  devisees  who  are  all  liable,  he  may  in 
equity  compel  the  rest  to  contribute. 

Yet,  notwithstanding  these  considerations,  it  seems  difficult  to  imagine 
how  the  judgment  could  be  rendered  at  law,  so  as  to  fix  his  own  proportion 
only  upon  each;  for  as  the  demand  is  joint,  the  judgment  must  be  joint; 
and  even  if  one  confesses  the  assets  and  the  other  does  not,  still  I  presume 
the  judgment  would  be  joint,  though  to  be  levied  against  the  person  of  the 
latter,  but  against  the  assets  only  in  the  hands  of  the  former. 

It  may  here  be  advisable  to  say  something  of  the  case  of  a  devisee  before 
we  proceed  to  the  judgment  and  execution  against  the  heir.  Among  the 
frauds  practised  by  debtors  upon  their  creditors,  it  was,  before  the  statute 
of  fraudulent  devises,  a  common  artifice  for  a  debtor  to  devise  his  lands 
to  his  representatives  in  such  manner  as  to  break  the  descent,  which  was 
effected  where,  by  the  devise,  the  heir  took  an  estnte  different  from  Avhat 
he  would  have  had  by  descent.  By  this  means,  when  on  the  bond  of  the 
ancestor  a  suit  was  brought  against  the  heir,  he  might  plead  no  assets  by 
descent,  and  foil  the  creditor,  though  he  or  some  other  person  had  received 
real  estate  by  devise  adequate  to  the  discharge  of  the  debt.  To  prevent 
this  gross  abuse,  all  devises  of  real  estate,  except  for  payment  of  debts  and 
certain  portions  for  children,  are  declared  void  as  against  creditors  whose 
demands  bind  the  heir,  and  they  are  authorized  to  sue  the  heir  and  devisee 
jointly.  The  devisee  in  such  case  is  to  all  intents  and  purposes  chargeable 
as  heir,  and  may  make  a  like  defence.  And  where  such  devisee  is  also 
sued  as  heir,  a  plea  that  he  has  no  assets  by  descent  is  no  good  plea,  for  it 
omits  to  answer  that  part  of  the  declaration  which  charges  him  as  devisee. 
Such  a  plea  ought  not  to  be  received  to  set  aside  an  office  judgment,  even 
though  it  be  not  objected  to,  and  if  a  verdict  bo  found  upon  it,  a  repleader 
will  be  awarded.  1  Call.  257. 
VOL.  2—15 


114  DEBT.  [book  3» 

Having  given  this  vie'fv  of  the  pleadings  against  the  heir  and  devisee,  I 
shall,  for  the  sake  of  presenting  the  subject  entire,  offer  a  few  remarks  as 
to  the  judgment  and  execution. 

1.  Where  the  judgment  is  by  nil  dicit,  or  on  demurrer,  or  upon  a  false 
plea,  or  by  confession  of  the  action  without  confession  of  the  assets,  the 
judgment  is  for  the  debt  and  damages,  as  if  it  was  the  heir's  own  proper 
debt,  without  reference  to  the  lands;  unless  the  plaintiff  shall  suggest  that 
the  heir  hath  particular  lands  by  descent,  and  prays  execution  of  the  whole 
of  them.  2  Saun.  7.  On  this  suggestion  execution  issues  accordingly: 
but  if  there  be  no  such  suggestion,  a  casa,  or  fifa,  or  elegit  may  issue. 

2.  Where  the  defendant,  having  sold  the  laud,  pleads  no  assets  by  de- 
scent, and  the  plaintiff  replies  under  the  statute,  the  judgment  is  given  for 
the  debt  to  the  gross  value  of  the  land,  according  to  the  estimate  of  the 
jury  ;   and  any  execution  may  be  taken  out  against  the  heir. 

3.  Where  the  defendant  confesses  the  assets,  the  judgment  is  special 
that  the  "  plaintiff  recover  his  debt  to  be  levied  on  the  lands,"  &c.  (confess^ 
ed  to  be  descended  :)  1  Lilly's  Ent.  181.  2  Lill.  Ent.  381  ;  and  thereup- 
on an  execution  issues  against  the  whole  land  in  the  form  set  forth  by  Judge 
Tucker  in  his  note  to  3  B.  C.  page  4-21. 

It  may  not  be  amiss  to  add  in  this  place  the  following  remarks  : 

1.  I  think,  from  the  tenor  of  the  law,  that  the  heir  cannot  be  made  liable 
in  an  action  of  debt,  except  for  the  value  of  the  lands  descended  ;  and  that 
the  rents  and  profits  received  by  him  cannot  be  reached  by  that  action.  I 
am  not  aware  of  any  decision  that  would  make  him  accountable  in  equity. 

It  would  seem,  indeed,  in  that  court,  that  the  guardian  of  the  heir  is  not 
bound  to  apply  the  rents  and  profits  of  the  real  estate  to  pay  the  bond  cre- 
ditors of  the  ancestor.  See  1  Vern.  428.  2  Vern.  006.  3  P.  Wms.  365. 
4  Brown,  167.  4  John.  615.  In  Alstadt  fs.  Vestal,  Judge  Carr  decided 
that  the  rents  and  profits  were  not  to  be  accounted  for.  See,  also,  2 
Leigh,  29. 

2.  In  equity  the  real  estate  will  not  be  subjected  to  sale  until  a  deficien- 
cy of  personal  assets  is  ascertained,  except  in  cases  of  specific  lien.  4 
John.  618.  It  is  no  objection  to  the  proceeding  to  a  sale  inequity  that  the 
heirs  are  infants.     Id.     6Mun.432. 

3.  The  lands  in  the  hands  of  a  purchaser  without  notice  of  debts,  are 
not  liable  at  law  or  in  equity,  unless  he  purchases  pendente  lite.  So  of  a 
purchaser  from  a  devisee,  though  the  contrary  seems  in  one  case  to  have 
been  contended.  Sug.  366,  citing  2  Anst.  206.  Equity  will,  however, 
under  circumstances,  enjoin  the  purchase  money  of  the  lands  at  the  instance 
of  a  creditor.     3  Bro.  C.  C.2i7. 

0^  pleas  by  executors  or  administrators.  1.  Plea  of  ne  unques  executor. 
If  the  defendant  is  sued  as  executor,  whereas  in  truth  he  is  administrator, 
it  must  be  pleaded  in  abatement,  for  it  is  no  bar,  since  the  plaintiff  may  have 
a  good  action  against  him  uiitler  another  character.  But  where  he  is  nei- 
ther executor  nor  administrator,  this  |)lea  is  a  good  plea  in  bar,  for  it  siiews 
that  the  plaintiff  can  have  no  action  against  him  in  any  character.  5  Barn. 
&Cres.  VJ[. 

On  this  plea,  also,  arises  the  question  whether  the  executor  be  or  be  not 
executor  of  his  own  wrong.  It  is  also  a  proper  |)lea  in  disnbility  of  a  ])lnin- 
tiff  who  sues  as  executor  or  administrator  ;  and  upon  it  the  question  whether 
letters  testamentary  or  of  administration  have  been  properly  granted,  it  is 
said,  will  be  tried.  1  Es[).  25(».  The  |)laintilf  should  in  his  declaration,  in 
all  cases,  make  profcrt  of  the  letters  of  administration,  though  the  omission 
is  cured  after  a  verdict  by  the  act  of  Jeofails. 

The  executor  may  plead  to  the  action  any  matter  which  the  testator 
might  hare  pleaded  in  bar  of  the  demand,  but  he  may   also   plead  other 


CHAP.  7.]  DEBT.  115 

matters  arising  out  of  his  own  executorial  character  and  transactions.  Thus 
he  may  plead  a  retainer  of  the  assets  to  pay  his  own  debt,  or  that  lie  has 
fully  administered.  The  riwht  of  retainer  and  the  order  of  paying  debts 
havintr  been  explained  elsewhere,  a  kw  remarks  will  suffice  here. 

The  ret  liner  may  be  given  in  evidence  on  the  plea  oi'  plene  adininistra- 
vit.     See  Saun.  SSS,  n.  (>. 

An  executor  should  plead  truly  and  honestly  :  and  he  should  also  act 
cautiously;  for  at  common  law,  if  judgment  went  against  him  by  default, 
it  was  an  admission  of  assets.  So  a  plea  of  six  judgments,  and  that  he  had 
not  assets  more  than  sufficient  to  satisfy  them,  was  held  an  admission  of  as- 
sets to  above  five.  Salk.  293,  310.  Yet  this  is  not  now  the  law  of  Vir- 
ginia. For  an  executor  is  not  chargeable  bejond  the  assets  for  any  false 
pleading,  or  omission,  or  mistake  in  pleading.  1  R.  C.  ch.  104,  §  36.  Hence, 
although  he  does  not  plead  fully  administered  to  the  action  brought  against 
him  to  establish  the  demand,  yet  he  may,  under  our  law,  plead  it  afterwards 
to  an  action  of  devastavit  brought  on  the  judgment  in  that  suit,  or  to  an 
action  on  the  executorial  bond.  See  I  R.  C.  ch.  104,  §  63.  Still,  howev- 
er, circumspection  is  necessary,  as  notwithstanding  the  lenient  spirit  of  our 
laws,  executors  may  by  carelessness  make  themselves  liable.  Tiius  an  un- 
conditional confession  of  judgment  is  an  admission  of  assets:  2  H.  & 
M.  575.  So,  also,  if  to  the  action  brought  to  establish  the  debt,  the  exec- 
utor pleads  p/ene  administravit,  and  it  is  found  against  him,  he  can  never 
afterwards  in  an  action  of  devastavit,  or  in  a  suit  on  the  executorial  bond, 
plead  the  matter  again,  since  the  verdict  on  the  point  concludes  him  for- 
ever. When,  therefore,  he  finds  himself  unprepared  with  his  evidence  to 
support  a  plea  of  fully  administered,  he  should  not  plead  it  to  the  original 
suit,  or  if  it  has  been  pleaded,  he  should  withdraw  the  plea  before  the  trial, 
and  then  it  may  be  pleaded  in  the  subsequent  action  of  devastavit,  or  in  the 
suit  on  the  executorial  bond,  at  which  time  he  may  be  better  prepared  to 
support  it.  Where,  however,  there  are  debts  of  superior  dignity,  they  must 
be  pleaded,  as  otherwise  the  debtor  of  inferior  dignity  may  get  his  judgment 
and  sweep  the  assets  by  his  execution,  as  he  will  have  a  right  to  levy  on  them 
if  to  be  found. 

Our  courts,  as  well  as  our  statutes,  are  very  indulgent  to  executors  and 
administrators,  and  will  permit  them  to  amend  their  plea  by  pleading  fully 
administered  at  any  time  before  the  trial,  provided  there  is  no  reason  to  sus- 
pect a  design  to  procrastinate.     1  H.  &  M.  28. 

When  the  executor  has  fully  administered,  he  pleads  the  plea  generally. 
Where  he  has  fully  aiministered  all  but  a  certain  sum,  the  application  of 
which  to  the  payment  of  the  plaintiff's  demand  he  is  willing  to  admit,  he 
pleads  "plene  administravit pr cuter,"  that  is  to  say,  "that  he  has  fully  ad- 
ministered all  the  assets  except  so  much."  Where  he  contests  such  applica- 
tion because  he  has  confessed  judgment  to  another  action,  or  because  there 
is  a  debt  of  superior  dio-nity,  he  must  plead  these  matters  accordingly.  See 
Doug.  436;  1  Chitty,"  485.  6  Ran.  108.  Forms  of  pleas,  2  Chitty,  452 
to  458.  The  creditor  may  reply  per  fraudem,  see  Starkie,  part  4,  557. 
Williams'  Executors,  1208.     1  Saun.  103,  329. 

Of  the  plea  to  an  action  by  the  assignee  of  a  bond.  The  obligor  may  in 
this  action  plead  any  thing  that  he  might  have  done  if  the  suit  had  been 
brought  by  the  obligee  or  assignor.  Where,  however,  payments  have  been 
made  by  him  since  the  assignment,  he  must  plead  "  payment  to  the  obligee 
before  notice  of  the  assignment,"  (6  Ran.  353,)  and  under  this  plea  he  may 
give  evidence  of  any  such  payment  in  discharge  of  the  bond.  1  R.  C.  ch. 
125,  §  5.  In  like  manner,  where  there  are  several  successive  assignments, 
he  may  plead  "  payment  to  any  assignor  before  notice  of  the  assignment  by 


116  DEBT.  [book  3. 

Buch  assignor  ;"  but  unless  he  pleads  this  matter  specially,  he  cannot  give 
evidence  of  it  on  the  general  plea  of  paynient.     6  Ran.  353. 

The  obligor  may  also  plead  '•'  no  assignment,"  and  this  will  render  ne- 
cessary proof  of  the  assignment  of  the  bond,  crt- of  such  of  the  assignments 
as  are  denied,  if  there  be  more  than  one. 

Of  the  evidence  in  case  of  bonds.  In  Virginia,  "  payment"  is  the  usual 
plea  instead  of  non  est  factum,  as  this  latter  is  required  to  be  verified  by 
affidavit.  Where,  however,  non  est  factum  is  pleaded,  the  plaintiff  must  be 
prepared  to  establish  the  execution,  or  sealing  and  delivery  of  the  bond. 
This  m,u5t  be  proved  by  the  subscribing  witness,  if  there  be  one,  provided 
he  can  be  produced,  and  is  capable  of  being  examined.  But,  though  there 
be  more  than  one  subscribing  witness,  only  one  need  be  produced. 

It  is  a  general  rule  that  the  proof  by  the  subscribing  witness  cannot  be 
dispensed  with,  nor  supplied  by  evidence  of  an  acknowledgment  ol  the  exe- 
cution of  the  bond,  though  solemnly  made  on  oath  in  an  answer  in  chan- 
cery:  for  the  subscribing  witness  might  possibly  have  recollected  facts  con- 
nected with  the  execution  of  the  bond,  which  the  defendant  may  have  for- 
gotten. To  this  general  rule,  however,  there  are  exceptions  ;  for  if  the  sub- 
scribing witness  be  dead,  or  absent  from  the  country,  or  cannot  be  lound 
after  diligent  inquiry, — or  if  he  be  blind,  or  incompetent  from  insanity,  or 
infamy,  or  subsequently  acquired  interest — proof  of  his  handwriting  will 
suffice  :  and  when  that  is  proved,  it  is  considered  as  establishing  both  sealing 
and  delivery.  It  is  not  necessary,  after  proving  the  handwriting  of  the  wit- 
ness, to  prove  that  of  the  obligor  ;  Phil.  Ev.  [4-20]  ;  though  it  was  formerly 
held  otherwise. 

Where  there  are  no  subscribing  witnesses,  or  they  were  interested,  or  in- 
famous when  they  attested,  and  so  continue — or  the  name  of  a  fictitious 
person  is  inserted  as  a  witness,  or  the  handwriting  of  a  subscribing  witness, 
who  is  not  to  be  found,  cannot  be  proved — (I  Leigh,  483) — in  these  cases 
the  execution  of  the  bond  may  be  established  by  proof  of  the  obligor's  hand- 
writing, or  of  his  acknowledgment  of  the  execution,  or  by  the  evidence  of 
a  person  who  was  privy  to  it,  although  he  was  not  a  subscribing  witness. 
Phil.  Ev.  [421.]  Where  at  the  time  of  attestation  the  party  was  interested 
or  infamo'cS,  proof  of  his  handwriting  is  rejected,  because  no  faith  is  to  be 
reposed  in  an  attestation  made  when  the  witness  was  incompetent  from  bias, 
or  capable  of  knavery  from  character.  W^here  the  subscribing  witnesses  de- 
ny any  knowledge  of  the  execution  of  the  bond,  and  it  can  be  shewn  that 
this  denial  proceeds  from  fraud,  and  not  from  want  of  recollection  only,  the 
obligor's  handwriting  may  then  also  be  proved.     PhiW  Ev.  [420.] 

Evidence  on  the  plea  of  fully  administered.  To  prove  assets  the  plain- 
tiff may  produce  witnesses,  or  he  may  give  in  evidence  the  inventory  of  the 
estate,  if  one  has  been  made  and  returned.  If  there  be  none,  he  may 
compel  the  executor  to  make  one  and  return  it.  I  Mun.  16.  The  ap- 
praisement of  the  estate  niay  also  be  given  in  evidence  as  an  inventory,  if 
signed  by  the  executor;  but  if  not  signed  by  him,  it  cannot,  as  such,  be 
evidence  ag.-.inst  him  ;  2  IJ.  &,  M.  30i  ;  though  it  is  .still  admissible  as  pri- 
ma facie  evidence  of  the  value  of  the  fstate.  3  Mun.  05.  It  seems  doubt- 
ful whether  the  inventory  and  appraisement  should  be  admitted  to  record 
under  the  sanction  of  the  court,  before  they  can  be  offered  as  evidence.  2 
H.  &  M.  3G1.    4  H.  &  i\I.  255. 

It  must  be  remarked,  too,  that  the  appraisement  is  not  conclusive  evi- 
dence, even  if  returned  and  recorded,  if  it  be  proved  that  llie  estate  sold 
for  more  or  less  than  the  appraised  value.  I  R.  C.  ch.  1C4,  §  45.  Nor  is 
the  inventory  conclusive  if  part  of  the  property  turns  out  not  to  have  be- 
longed to  the  testator. 


iiAP.  7.  J  DEBT.  1  17 

On  the  part  of  the  executor,  the  due  administration  of  the  assets  must 
be  proved.  This  (rcguhirly)  is  to  be  done  by  the  production  of  vouclicrs, 
or  other  testimony  of  payments  of  valid  demands  against  the  estate.  But, 
as  it  is  often  inconvenient  to  do  this,  tiic  executor  usually  has  his  accounts 
settled  by  commissioners  under  an  order  of  the  court  which  granted  the 
probate,  and  this  account,  when  it  has  been  examined  and  passed  by  the 
court  and  admitted  to  record,  is  admissible  on  the  plea  of  fully  adniinietered, 
as  yj;i7na/«cic  evidence  ofthcscveral  items  therein.  4  H.  8t]\I. '253.  The 
plaintifTmay,  however,  surchage  and  falsify  such  account;  that  is  to  say, 
he  may  surcharge  by  proving  that  there  are  assets  for  which  no  credit  is 
given,  or  he  may  falsify  by  disproving  any  payment  alleged  to  liave  been 
made,  or  the  justice  of  tlie  demand  so  j)aid.  Where  a  judgment  has 
been  recovered  against  the  executor  and  discharged,  the  validity  of  that 
judgment,  I  presume,  can  only  be  questioned  on  the  trial  of  the  plea  of 
I'ully  administered,  by  nWegiug  per  fraudem, — that  is,  that  it  was  obtained  by 
fraudulent  collusion  on  the  part  of  the  executor.  But  where  there  has  been 
no  judgment,  proof  may  be  demanded  of  the  justice  of  the  debts  which 
liave  been  j)aid  ;  or  if  bonds  are  given  in  evidence  in  support  of  this  plea 
in  bar  of  an  action  on  a  simple  contract,  the  plaintiff  may  even  call  for 
proof  of  the  sealing  and  delivery.     Show.  8.     1  Esp.  2G1.* 

See  farther,  as  to  administration  of  the  assets,  the  head  of  executors  and 
administrators.  Book  2. 

Of  the  verdict  and  judgment.  In  debt  on  simple  contract  or  single  bill, 
the  verdict  ought  to  find  not  only  the  debt  which  is  demanded,  but  interest 
thereon,  from  the  time  at  which  it  became  due,  and  one  cent  damage.  It 
is  to  this  effect:  "  We,  the  jury,  find  for  the  plaintiff  the  debt  in  the  decla- 
ration mentioned,  with  interest  (hereon  at  the  rate  of  six\  per  cent,  per  annum, 

from  the day  of 18 — ,  till  paid,  and  one  cent  damage  :"  and 

judgment  is  rendered  accordingly.  But  where  the  suit  is  upon  a  bond  or 
penal  bill,  there,  as  we  have  seen,  the  declaration  demands  the  penalty  it- 
self, (see  4  Mun.  307,)  and  as  that  covers  the  interest,  the  verdict  takes  no 
notice  of  interest,  and  the  words  in  italics  are  in  such  cases  omitted.  The 
same  may  be  said  where  the  debt  is  on  a  single  bill,  which  on  its  face  calls 
for  interest,  and  the  declaration  demands  it  accordingly;  for  in  that  case 
the  finding  of  the  debt  in  the  declaration  of  itself  includes  the  interest,  and 
therefore  the  words  in  italics  would  be  improper,  as  the  plaintiff  would  then 
have  interest  upon  interest.  Where  the  verdict  is  upon  a  bond  or  penal 
bill,  the  judgment  is  for  the  penalty  to  be  discharged  by  the  sum  mention- 
ed in  the  condition,  with  interest  from  the  time  at  which  it  became  due, 
unless  part  has  been  paid,  when  a  different  course  is  i)ursued. 

Where  the  suit  is  upon  a  simple  contract  or  single  bill,  and  part  has  been 
paid,  the  declaration  nevertheless  demands  the  wliole.  The  verdict  will  in 
such  case  bv!  thus:  "We,  the  jury,  find  for  the  plaintiff  $450,  part  of  the 
debt  in  the  declaration  mentioned,  with  interest  thereon  at  the  rate  of  six 
per  cent,  per  annum,  from  the  1st  day  of  January,  1825,  till  paid,  and  one 
cent  damages;  and  we  further  find  that  fifty  dollars,  the  residue  of  the  said 
debt,  hath  been  paid."\  In  this  case  these  latter  words  are  necessary,  be- 
cause it  is  essential  that  the  verdict  should  be  responsive  to  the  whole  de- 
mand ;  and  without  them  the  court  would  not  know  judicially  whether  the 

*  See  Aiile,  113.    Also,  1  Wasli.  306.    2  Hen.  &  Mun.  245.    4  Hen.  Sc  Mun.  2.'i3.    1  Mun.  437. 

tTlie  rate  of  interest  licie  inserted  mu.«t  correspond  willi  the  rate  arising  under  the  contract.  If 
tlie  contract  was  a  Viiginia  lontn  c  anterior  to  May,  1797,  only  5  per  cent,  is  allowable.  Ou  a  New 
York  contract,  7  per  cent,  is  allowed,  &c. 

tin  pimple  contract  the  finding,  inste.id  of  the  words  in  italics,  should  be,  "And  we  furlherfind  that 
the  defendant  doth  not  owe  the  residue  of  the  said  debt  in  the  declaration  mentioned."  Debt  on 
simple  contract  is  rarely  brought,  except  on  promissory  notes.  lu  England  it  was  lone  disused  ou 
account  of  (lie  wager  of  law. 


118  DEBT.  [book  3. 

residue  had  been  paid  or  not.  The  judgment  in  this  case  is  for  the  sum  re- 
covered witli  interest,  saying  nothing  of  what  had  been  paid.  But  in  debt 
on  bond,  or  penal  bill,  where  payments  are  proved,  the  jury  ascertain  tho 
balance  of  principal  and  interest  due  by  the  condition,  and  the  verdict  is 
thus:  "We,  the  jury,  tind  for  the  plaintiff  the  debtin  the  declaration  men- 
tioned, to  be  discharged  by  the  payment  of  $450,  with  interest  thereon  at 
the  rate  of  six  per  cent,  per  annum,  from  the  1st  day  of  January,  1825,  till 
paid,  and  one  cent  damages:"  and  the  judgment  is  entered  accordingly. 

Where  the  verdict  in  debt  on  bond  is  general  for  the  full  amount  of  the 
penalty,  no  payments  having  been  made,  the  judgment  is  rendered  by  the 
court  for  the  penalty,  to  be  discharged  by  the  payment  of  the  amount  due 
by  the  condition,  with  interest  from  the  time  it  became  due  till  paid. 

Judgment  on  a  bond  for  payment  of  a  debt  by  instalments,  should  be  for 
the  debt  in  the  declaration  mentioned,  to  be  discharged  by  the  sum  due  at 
the  time  of  institution  of  the  suit,  reserving  liberty  to  the  plaintiff  to  resort 
to  a  scire  facias  to  rceover  the  other  instalments  as  they  afterwards  become 
due  by  the  condition  of  the  bond.  Thatcher  rs.  Taylor,  3  Mun.  249.  See> 
aJso^  Book  2,  title  Obligations. 

Verdict  on  plene  administravit.  Where  this  plea  is  filed,  it  must  be  di'- 
rectly  answered  by  the  verdict.  If  it  be  established,  and  there  be  no  other 
plea  filed,  the  verdict  may  be  general:  "  We,  the  jury,  find  for  the  defend- 
ant." Or  if  there  be  another  plea  it  may  be  to  this  effect :  "  We,  the  jury^ 
find  for  the  defendant  upon  the  plea  of  fully  administered."  Or,  it  may  re- 
spond more  particularly  to  the  issue  thus  :  "  We,  the  jury,  find  that  the  de- 
fendant had  not  at  the  time  of  the  couimencement  of  this  suit,  nor  ever 
since,  assets  in  his  hands  unadministered  whereof  to  satisfy  the  said  plain- 
tiff his  demand,  or  any  part  thereof"     See  1  Saun.  .336,  in  note  10. 

Where  no  other  plea  is  filed,  upon  this  being  found  for  the  defendant, 
the  judgiuent  even  before  the  late  act  could  only  have  been  for  costs  de 
bonis  testaloris.  When  a  plea  denying  the  plaintiffs  claim  is  also  filed,  the 
verdict  may  be  for  the  plaintiff  on  that  plea,  and  for  the  defendant  on  the 
plea  of  fully  administered,  by  blending  the  forms  already  given.  In  this 
case  the  plaintiff  will  be  entitled  to  his  costs,  to  be  levied  of  the  assets. 
But  costs  cannot  now  be  rendered  de  bonis  propriis.  See  Sess.  Acts,  Feb. 
19,  1823,  ch.  28,  §4.  Until  this  act  it  was  otherwise.  I  Saun.336,  n.  10. 
''■  When  an  administrator  defendant  pleads  the  single  plea  of  '  fully  ad- 
ministered,' and  the  issue  is  found  for  him,  the  plaintiff  ought  to  have 
judgment  for  debt  and  costs,  when  assets,  Sec,  and  the  defendant  ought  to 
Jiave  a  judgment  against  the  plaintiff  for  the  general  costs  of  the  action. 

"  When  the  defendant  administrator  pleads  '  non  assumpsit,'  and  '  fully  ad- 
ministered,' and  the  first  is  found  for  the  plaintiff,  and  the  second  for  the 
defendant,  the  judgment  ought  to  be  for  the  plaintiff  for  the  debt  and  costs, 
quando,  Sec,  and  the  defendant  ought  to  have  a  judgment  for  the  separate 
costs  of  the  second  issue. 

"  If  the  defendant  pleads  both  jdeas,  and  tlie  plaintiff  declines  replying 
to  the  plea  of  'fully  administered,'  or  Jiaving  replied  to  it  withdraws  it  with- 
out subjecting  the  defendant  to  costs  by  doing  so,  and  the  first  issue  is  then 
found  for  the  ])laintilf,  he  ought  to  have  a  judgment  for  his  debt  and  costs, 
quando,  Sec,  and  the  defendant  is  not  entitled  to  any  costs. 

"If  a  plaintiff  having  replied  to  the  plea  of  'fully  administered,'  after- 
wards withdraws  his  replication  by  consent  of  the  court,  the  defendant  may 
at  that  time  object  to  it,  uidess  on  tiie  terms  of  the  piaintifl''s  paying  the 
costs  occasioned  by  that  replication.  If  he  neglects  to  do  so,  it  will  l)e  con- 
strued into  an  admission  that  he  is  not  entitled  to  recover  any,  and  there 
will  be  no  judgment  at  any  future  term  for  his  separate  costs,  if  the  first  is- 


CHAP.  7.]  DEBT.  119 

sue  on  the  plea  of  non  assumpsit  is  found  against  him.     2  Virg.  Ca.  348. 
See,  also,  6  Ran.  108." 

Where  the  plea  of  plene  administravit  is  not  fully  supported,  the  verdict 
should  find  the  value  of  the  goods  unadtninistcrcd,  or  at  least  that  they  are 
"sufficient  to  satisfy  the  plainlitf's  demand."  1  Esp.  203.  2  Wash.  301. 
5  Crancli,  19.  1  Leigh,  481.  And  if  the  verdict  be  uncertain  as  to  this, 
the  plaintiff  cannot  have  a  judgment,  but  there  must  be  a  venire  de  novo, 
(i.  e.  the  verdict  must  be  set  aside,  and  another  jury  must  be  sworn  to  try 
the  case.)     3  Call.  4-24.     3  Mun.  05.     4  Mun.  400. 

It  has  recently  been  decided,  (0  Ran.  108,)  that  a  verdict  upon  the  plea 
of  fully  administered  ought  to  ascertain  whether  the  defendant  had  assets  at 
the  date  of  the  commencement  of  the  suit,  and  of  the  plea  pleaded.  It  is 
moreover  decided  that  the  judgment,  when  assets,  refers  to  the  time  of  plea 
pleaded  ;  and  though  assets  be  received  after  the  plea  and  before  the  trial 
they  cannot  be  inquired  into  in  that  action,  but  may  in  the  subsequent  scire 
facias.     See,  also,  0  T.  R.  1. 

Where  the  verdict  is  that  the  defendant  has  fully  administered  the  whole 
of  the  assets,  yet  if  the  plaintiff  establishes  his  demand,  judgment  is  ren- 
dered in  his  favor  "  quando  assets  acciderint ;"  that  is,  for  his  debt,  interest, 
damages,  and  costs,  "  to  be  levied  of  the  goods  and  chattels  of  the  dece- 
dent which  may  thereafter  come  to  the  hands  of  the  defendant  to  be  admin- 
istered." 2  Saun.  210.  2  Lilly's  Ent.  505.  In  like  manner,  where  there 
are  in  the  hands  of  the  executor  assets,  but  not  to  the  value,  the  judgment 
is,  that  the  palintiff  recover  so  much  of  his  debt  as  the  assets  amount  to,  to 
be  levied  of  the  goods  of  the  decedent  in  his  administrator's  hands,  and  the 
residue  of  his  debt  to  be  levied  of  the  further  assets  quando  acciderint.  2 
Lilly's  Ent.  475,  482,  505.     1  Saun.  330,  a,  in  note. 

As  to  taking  judgment  quando  acciderint,  it  must  be  observed  that  when 
the  defendant  pleads  p/e/je  administravit,  the  plaintiff  may  immediately  take 
such  judgment ;  2  Saun.  220  ;  but  then  he  can  never  in  a  subsequent  ac- 
tion go  behind  it,  and  shev/  that  there  were  assets  in  the  hands  of  the  ex- 
ecutor at  the  time  it  was  rendered  ;  for  he  is  concluded  by  the  judgment, 
whether  it  was  given  on  a  verdict  rendered  on  plene  administravit,  or  on  his 
own  admission  in  agreeing  to  take  such  a  judgment.  But  it  must  be  re- 
membered that  the  judgment  itself  relates  back  to  the  date  of  the  plea 
pleaded  ;  and  no  notice  can  be  taken  on  the  trial  of  assets  received  after 
the  date  of  the  plea.  0  Rand.  108.  Thus,  upon  a  scire  facias,  (which  is 
the  proper  remedy  for  the  plaintiff  if  assets  have  since  accrued,  I  Saun. 
330,  b.)  evidence  of  such  assets  only  as  have  come  to  the  executor's  hands 
since  the  plea  pleaded  in  the  original  action  (0  Ran.  108,)  will  be  received. 
2  Selw.  715.  0  T.  R.  I.  For  the  scire  facias  must  pursue  the  terms  of 
the  original  judgment,  which  are,  'Uhat  the  plainti(f  shaW  recover  his  debt, 
to  be  levied  of  the  goods  which  shall  thereafter  come  to  the  executor's 
hands  ;"  and  it  must  therefore  allege  as  the  very  ground  of  it,  that  goods 
have  come  to  his  hands  since  the  judgment,  (which  refers  to  the  plea  plead- 
ed, 0  Ran.  108,)  or  it  will  be  radically  defective.  2  Saun.  219,  n.  2.  On 
this  point,  then,  the  issue  will  be  made  up,  and  to  this  only  can  evidence 
be  given.  See  the  form  of  the  scire  facias,  and  of  the  plea  to  it.  2  Saun. 
217,  220.  It  seems  that  in  this  scire  facias,  if  the  judgment  of  assets 
quando,  &c.  was  rendered  upon  a  special  plea  of  plene  administravit  prater 
judgments,  the  future  assets  are  first  applicable  to  such  judgments  so  far  as 
they  may  be  necessary,  and  the  plaintiff  in  the  scire  facias  can  only  come 
upon  the  balance.  1  Salk.  312.  It  is  otherwise  where  the  plea  is  of  plene 
administravit  generally,  which  shews  the  importance  of  caution  in  pleading 
on  the  part  of  the  executor.     See  1  Saun.  330,  b. 


120  COVENANT.  [book  3. 

In  no  case  is  a  judgment  for  costs  now  levied  of  the  goods  and  chattels 
of  the  executor  defendant.     Act  of  Feb.  1823,  ch.  28,  §  4. 

In  debt  against  two  executors,  if  they  plead  severally  "fully  administer- 
ed," and  the  jury  find  that  one  has  assets  and  the  other  not,  the  judgment 
shall  be  against  the  former,  and  the  other  shall  go  quit.     2  Sehv.  176. 

When  in  an  action  on  an  assigned  bond  or  note,  the  defendant  pleads 
payment,  and  also  a  special  plea  of  "  payment  to  the  assignor  before  notice 
of  the  assignment,"  and  they  find  upon  the  latter  plea,  it  is  proper  that  this 
should  appear  in  their  verdict;  and  thus  the  plaintiff  in  an  action  against  his 
assignor  will  be  furnished  with  the  means  of  establishing  his  demand  with 
out  difficulty. 

I  have  been  more  explicit  on  the  subject  of  this  action,  because  of  its 
very  great  importance  ;  since  a  plaintiff  may  lose,  or  a  defendant  may  be 
saddled  with  large  sums  by  the  errors  of  young  counsel  in  the  management 
of  their  cause. 


CHAPTER  VIII. 

COVENANT. 

2.  "  A  covenant  also,  contained  in  a  deed,  to  do  a  direct  act,  or  to  omit 
one,  is  another  species  of  direct  contracts,  the  violation  or  breach  of  which 
is  a  civil  injury.  As  if  a  man  covenants  to  be  at  York  by  such  a  day,  or 
not  to  exercise  a  trade  in  a  particular  place,  and  is  not  at  York  at  the  time 
appointed,  or  carries  on  his  trade  in  the  place  forbidden,  these  are  direct 
breaches  of  his  covenant;  and  may  be  perhaps  greatly  to  the  disadvantage 
and  loss  of  the  covenantee.  The  remedy  for  this  is  an  action  or  writ  of 
covenant:  in  which,  upon  proof  that  the  covenant  is  broken,  the  jury  will 
give  damages  in  proportion  to  the  injury  sustained  by  the  plaintiff,  and  oc- 
casioned by  such  breach  of  the  defendant's  contract. 

"  There  is  one  species  of  covenant,  of  a  different  nature  from  the  rest, 
which,  though  entirely  disused,  it  is  proper  to  notice.  It  is  a  covenant  real, 
to  convey  or  dispose  of  lands,  which  seems  to  be  partly  of  a  personal  and 
partly  of  a  real  nature.  For  this,  the  remedy  is  by  a  special  writ  of  cove- 
nant, for  a  specific  performance  of  the  contract,  concerning  certain  lands 
particularly  described  in  the  writ.  It  therefore  directs  the  sherifl'  to  com- 
mand the  defendant,  here  called  the  deforciant,  to  keep  the  covenant  made 
between  the  plaintiff  and  him  concerning  the  identical  lands  in  question  : 
and  upon  this  process  it  is  that  fines  of  land  are  usually  levied  at  common 
law,  the  plaintiff,  or  person  to  whom  the  fine  is  levied,  bringing  a  writ  of 
covenant,  in  which  he  suggests  some  agreement  to  have  been  made  between 
him  and  the  deforciant,  touching  those  particular  lands,  for  the  completion 
of  which  he  brings  this  action.  And,  for  the  end  of  this  supposed  differ- 
ence, the  fine  or  finalis  concordia  is  made,  whereby  the  deforciant  (now 
called  the  cognizor)  acknowledges  the  tenements  to  be  the  right  of  the 
plaintiff,  now  called  the  cognizee.  And,  moreover,  as  leases  for  years  were 
formerly  considered  only  as  contracts  or  covenants  for  the  enjoyment  of  the 
rents  and  [)rofits,  and  not  as  the  conveyance  of  any  real  interest  in  the 
land,  the  ancient  remedy  for  the  lessee,  if  ejected,  was  by  a  writ  of  cove- 
nant against  the  lessor,  to  recover  the  term  (if  in  being)  and  damages,  in 
case  the  ouster  was  committed  by  the  lessor  himself;  or  if  the  term  was  ex- 
pired, or  the  ouster  was  committed  by  a  stranger,  claiming  by  an  elder  title, 
then  to  recover  damages  only." 

The  action  of  covenant  being  that  whereby  damages  arc  recovered  for 
breach  of  any  af!;rccmenl  by  deed  between  the  parties,  the  agreement  must 
always  be  by  deed,  for  otherwise  the  proper  action  is  assumpsit.     But  it  is 


CHAP.  8.]  COVENANT.  12! 

unimportant  whether  it  be  an  indenture  or  deed  poll,  for  this  action  equally 
lies  on  either,  against  the  party  who  has  sealed  the  deed.  Yet  it  does  not 
lie  against  a  party  even  to  an  indenture,  who  has  not  sealed  it,  although 
he  has  accepted  it,  and  entered  and  held  possession  under  it,  unless,  indeed, 
he  claims  as  heir  or  assignee  under  one  who  has  sealed  it.  I  know  of  but 
one  exception  to  this  rule,  and  that  has  no  application  to  us.  It  is  the 
case  of  letters  patent  from  the  crown,  on  which  covenant  will  lie  against 
the  lessee  and  his  assignee,  though  the  lessee  never  sealed  a  counterpart. 
Cro.  Ja.  399,  521.     Selw.  -385. 

Covenants  are  either  express  or  implied,  or  (which  is  the  same  thing)  in 
deed  or  in  law.  Express  covenants  are  set  forth  in  terms  in  the  deed  ;  and 
no  particular  form  of  words  is  necessary  to  constitute  them.  Implied  co- 
venants are  those  which  the  law  raises  from  the  character  of  the  transac- 
tion, or  from  certain  technical  expressions  used  in  the  instrument.  Thus, 
the  word  "demise"  implies  a  covenant  for  quiet  enjoyment ;  and  the  words 
"  yielding  and  paying,"  a  covenant  to  pay  rent.     1  Saun.  241,  b.     Sed  vide, 

2  Selw.  492,  note. 

Covenants  are  further  divided  into  real  and  personal,  the  first  of  which 
are  annexed  to  land ;   see  4  Leigh,  69  ;  and  the  latter  to  the  person.* 

Though  no  particular  form  of  words  is  essential  to  constitute  an  express 
covenant,  yet  to  make  a  covenant  the  words  must  import  an  actual  agree- 
ment, and  not  merely  a  precedent  condition  :  as  a  covenant  to  repair, 
"  provided  the  lessor  finds  timber,"  is  only  a  condition  ;  for  he  may  prefer 
waiving  the  repairs  to  the  expense  of  finding  the  timber ;  while,  on  the  other 
hand,  a  lease  to  B  on  condition  that  he  shall  repair,  is  not  a  condition,  but  a  co- 
venant, for  an  agreement  is  clearly  imported.    2  Selw.  391.    See  2  Mun.337. 

Where  the  covenant  is  express,  the  party  is,  as  we  have  seen,  absolutely 
bound  to  perform,  nor  shall  he  be  discharged  by  any  collateral  matter. 
Thus  a  covenant  to  pay  rent  or  to  repair,  will  bind  the  covenantor,  it  seems, 
althoutrh  the  property  is  burnt  or  destroyed.  This  principle,  decided  by 
the  arbitrators  in  Overton  vs.  Ross,  (3  Call,  311,)  seems  to  be  supported  by 
some  English  cases.     6  T.  R.  650,  750.     3  B.  &  P.  420. 

Express  covenants,  on  the  other  hand,  are  never  to  be  extended  farther, 
as  to  time  or  persons,  than  the  words  import;  but  are  to  be  construed  ac- 
cording to  the  intention  fairly  to  be  inferred  from  their  language,  and  in 
doubtful  cases  most  strongly  against  the  covenantor.  They  shall  not  be 
construed  to  vary  the  duty  to  be  performed,  nor  to  embrace  a  thing  which, 
not  being  in  existence  at  the  time  they  were  entered  into,  may  not  have 
been  contemplated  by  the  parties.  They  have  the  effect  of  restraining  and 
qualifymg  the  generality  and  extent  of  covenants  inlaw,  and  are  themselves 
limited  by  their  legality  ;  for  if  contrary  to  law  or  to  its  policy,  they  cannot 
serve  as  the  foundation  of  an  action. 

There  are  various  covenants  which  are  usual  in  conveyances  of  land,  to 
which  it  is  proper  to  advert.  As,  1st.  The  covenant  to  pay  rent,  which 
must  be  performed  though  the  property  is  destroyed  by  fire  or  inevitable 
accident,  and  on  which  the  assignee  may  be  sued,  as  well  as  the  lessee. 
Such  also  is 

2.  The  covenant  for  quiet  enjoyment,  which  lies  for  an  entry  and  eviction 
by  superior  title  of  a  third  person,  or  even  for  a  disturbance  without  evic- 
tion on  the  part  of  the  lessor; — though  not  for  the  tortious  ejectment  or 
eviction  of  a  stranger,  unless  where  the  lessor  covenants  against  the  distur- 
bance of  such  stranger  particularly.  1  Esp.  274,  275.  Of  this  something 
has  been  said  elsewhere. 

'Covenants  are  also  joint  or  joint  and  several,  and  though  joint  in  form  they  will  be  considered 
joint  or  several,  according  to  the  intent  of  the  parties,  and  the  action  must  be  broughtaccordingly. 

3  Leigh,  101. 

VOL.  2—16 


122  COVENANT.  [book  3. 

3.  The  corenant  to  save  harmless  is  another  covenant  inserted  in  leases, 
and,  like  the  preceding,  extends  not  to  the  tortious  acts  of  strangers;  for 
they  are  liable  themselves  to  the  lessee's  action. 

4.  The  covenant  not  to  assign  or  underlet.  The  first  of  these  terms  im- 
plies, as  we  have  seen,  a  transfer  of  the  lessee's  whole  estate  in  the  land ; 
the  latter  implies  a  retaining  by  himself  of  some  portion  of  the  estate,  how- 
ever small.  Thus,  if  A  has  a  lease  for  one  hundred  years,  and  he  transfers 
the  whole  term  without  reserving  a  rent  to  himself,  it  is  an  assignment ; 
see  1  Str.  405;  but  if  he  leases  it  to  another  for  ninety-nine  years,  or  even 
for  the  one  hundred  years,  reserving  rent  to  himself,  it  is  an  underletting. 
Where  both  acts  are  intended  to  be  guarded  against,  both  terms  should  be 
used. 

This  covenant  is  not,  I  incline  to  think,  broken  by  act  of  law  ;  as  by  the 
lease  being  taken  in  execution  for  debt,  though  perhaps  a  lease  might  be  so 
worded  as  to  become  ipso  facto  \ old  by  any  such  matter.  See  2  T.  R.  133, 
&c.  425,  &c. 

5.  Covenant  for  repairs.  This  extends  to  all  erections  raised  during  the 
term.     1  Esp.  277. 

6.  Covenant  of  seizin  and  right  to  convey.  This  covenant  is  broken  at 
the  instant  of  signing  the  deed,  if  the  covenantor  hath  not  in  fact  seizen 
and  right  to  convey,  and  an  action  immediately  lies.  4  Cranch,  421.  4 
Dall.  4^6.  And  in  this  action  it  would  seem  that  the  measure  of  damages 
is  the  value  of  the  land  at  the  time  the  covenant  was  entered  into.  2  Ran. 
148. 

7.  Of  the  covenant  against  incumbrances.  A  right  of  way  is  an  incum- 
brance, as  also  is  a  right  to  dam  up  water  so  as  to  flow  back  on  the  land. 
Whether  a  public  road  long  established,  or  a  daming  of  water  where  there 
has  been  a  writ  of  ad  quod  damnum  according  to  law,  should  be  considered 
as  within  the  intention  of  a  general  covenant  of  this  kind,  would  perhaps 
depend  in  each  case  on  its  particular  circumstances. 

8.  The  covenant  for  further  assurance.  If  by  the  covenant  the  covenan- 
tee's counsel  is  to  advise  the  assurance,  the  covenantee  should  procure  the 
advice,  and  give  notice  to  the  covenantor  :  5  Co.  19:  for  until  he  does  this, 
the  covenantor  cannot  fulfil  his  contract.  Moreover,  he  is  entitled  to  pe- 
ruse the  deed  that  is  prepared  for  him,  and  to  take  advice  upon  it.  It  must 
be  observed,  however,  that  whatever  may  be  the  practice  in  England,  in 
Virginia  the  purchaser  is  not  bound  to  prepare  and  tender  a  deed  to  the 
vendor,  unless  such  obligation  can  be  fairly  inferred  from  the  terms  of  the 
coniract.     2  Ran.  20. 

Where  covenants  are  secured  by  bond  or  penalty,  the  obligee  may  either 
consider  the  contract  as  a  bond,  and  sue  for  the  penalty  in  debt,  or  he  may 
treat  it  as  a  covenant,  and  bring  this  action  for  damages.  1  Mun.45.  In 
the  former  case  the  party  sets  forth  as  many  breaches  of  the  condition  of 
the  bond  as  he  pleases,  cither  in  his  declaration  or  replication,  or  by  an  in- 
dependent assignment  of  broaches  where  there  is  no  plea,  as  has  been 
explained  elsewhere.  The  jury  assess  the  damages,  and  judgment  is  en- 
tered for  the  penalty  to  be  discharged  by  the  payment  of  those  damages, 
and  of  such  farther  damages  as  may  be  thereafter  assessed  upon  a  scire  fa- 
cias and  assignment  of  other  breaches.  See  1  Saun.  58.  2  Saun  187,  a. 
But  if  the  party  sues  for  the  |)eiialty,  (treating  the  deed  as  a  bond.)  he  can 
never  afterwards  sue  in  covenant,  for  the  judgment  for  the  penalty  puts  an 
end  to  any  further  claim.  !Nor  can  he  recover  damages  exceeding  the  pe- 
nalty; for  having  considered  it  as  a  debt,  he  cannot  go  beyond  it.  But  if 
he  waived  the  penalty  and  sued  in  the  first  instance  in  covenant,  he  might 
then  recover  more  or  less  than  the  penalty  toties  quotics.  4  Bur.  2225.  So 
that  it  is  sometimes  better  to  sue  in  covenant  than  in  debt. 


CHAP.  8]  COVENANT.  123 

A  distinction,  however,  must  be  observed  between  a  penalty  and  liquida- 
ted damages.  If  from  the  contract  the  penalty  appears  to  have  been  in- 
tended as  ill  terrorem,  the  party  recovers  only  such  damages  as  the  jury  as- 
sess. But  if  the  sum  or  penalty  is  in  the  nature  of  agreed  damages  or 
comjjensation,  there  the  party  recovers  the  whole  sum  without  proving  any 
amount  of  damages ;  for  what  is  agreed  on  need  not  be  proved:  4  Bur. 
22*28:  and  even  equity  will  not  relieve  in  such  cases. 

Covenants  considered  with  reference  to  the  time  of  their  performance, 
are  distinguished  into  such  as  are  mutual  and  independent — such  as  are  de- 
pendent— and  such  as  are  to  be  ])erformed  simultaneously.  I  cannot  do 
better  than  interweave  with  my  remarks  some  observations  of  Serjeant  Wil- 
liams on  this  subject.     1  Saun.  -320,  a.     2  Saun.  351,  b. 

"Almost  all  the  old  cases,  and  many  of  the  modern  ones,  on  this  sub- 
ject," says  he,  "  are  decided  upon  distinctions  so  nice  and  technical  that  it 
is  difficult,  if  not  impracticable,  to  deduce  from  them  any  certain  rules  as 
to  the  dependence  or  independence  of  covenants."  The  distinction  is 
important,  however,  to  be  understood,  as  upon  it  depends  the  question 
whether  in  a  given  case  it  is  necessary  in  the  declaration  for  the  plaintift'to 
aver  performance  on  his  part  or  not.  For  where  covenants  are  independ- 
ent, performance  need  not  to  be  averred,  but  where  they  are  dependent,  it 
is  essential  that  the  plaintiff  should  aver  performance,  or  at  least  an  offer  to 
perform  the  agreement  on  his  part.  1  Saun.  3'20,  a.  2  Saun.  352,  b. 
These  principles  are  well  settled: — "the  difhculty  is  in  the  application  of 
the  rule  to  particular  cases.  It  is  justly  observed  that  covenants  are  to  be 
construed  to  be  dependent  or  independent,  according  to  the  intention  of 
the  parties,  and  the  good  sense  of  the  case  ;  and  technical  words  should  give 
way  to  such  intention.  1  T.  R.  645.  4  Ran.  352.  In  order  to  discover 
it,  however,  it  may  not  be  improper  to  lay  down  a  few  rules  which  will  per- 
haps be  found  useful  for  that  purpose." 

1.  In  general,  the  payment  of  money  for  an  act  done  is  not  to  be  made 
before  the  act  is  done,  unless  a  contrary  intention  appears,  for  in  the  ordi- 
nary transactions  of  life,  a  service  done,  or  property  purchased,  is  not  paid 
for  in  anticipation.     See  Salk.  171. 

2.  "But  if  a  day  be  appointed  for  payment  of  money,  or  part  of  it,  or 
for  doing  any  other  act,  and  the  day  is  to  happen,  or  7nay  happen  before 
the  consideration  is  to  be  performed,  an  action  may  be  brought  for  the  money, 
or  for  not  doing  such  other  act,  before  performance  ;  for  it  is  obvious  that 
the  party  relied  on  his  remedy,  and  did  not  intend  to  make  the  performance 
a  condition  precedent  to  payment,"  since  he  has,  in  fact,  agreed  to  make 
the  payment  precedent  to  the  performance.  It  is  the  same  thing  where  "  a 
time  is  fixed  for  the  payment,  &c,,  and  no  time  for  the  performance  of  that 
which  is  the  consideration  of  the  money."     See  4  Ran.  346. 

3.  "  When  the  day  appointed  for  payment,  &c.,  is  subsequent  to  the  time 
appointed  for  performance  of  that  for  which  it  is  to  be  paid,  the  payment 
cannot  be  enforced  till  the  act  is  done."  1  Saun.  320,  b.  3  Ran.  68.  4 
Ran.  352. 

4.  "  In  every  case  of  a  sale  of  property,  where  one  engages  to  convey  on 
a  certain  day;  and  the  other  to  pay  at  the  same  time,  neither  party  can  be 
compelled  to  perform  his  part,  until  the  other  has  performed,  or  offered  to 
perform  his  ovi'n."     2  Saun.  352,  b.     1  Saun.  320.     See  3  Mun.  159. 

5.  "  Where  a  covenant  goes  only  to  part  of  the  consideration  on  both 
sides,  and  a  breach  of  such  covenant  may  be  paid  for  in  damages,  it  is  con- 
strued to  be  an  independent  covenant."  I  Saun  320.  I  think  the  rule 
may  be  more  intelligibly  laid  down,  thus  :  Where  the  breach  or  failure  by 
the  plaintiff  to  perform  on  his  part  goes  only  to  part  of  the  consideration, 
and  may  be  compensated  in  damages,  the  covenants  are  independent.     See 


124  COVENANT.  [book  3. 

3  Ran.  71.  Bream  vs.  Marsh,  4  Leigh.  As  where  A  sold  and  agreed  to 
deliver  ten  slaves  to  B  for  £1000.  One  ran  away,  and  he  delivered  only 
nine.  The  breach,  in  failing  to  deliver  this  one,  goes  only  to  part  of  the 
consideration  of  £1000,  for  if  the  other  nine  are  delivered,  the  price  or  va- 
lue of  them  certainly  ought  to  be  paid.  So  that  where  a  covenant  has 
been  broken,  or  cannot  be  fulfilled  in  one  part,  which  is  distinct  and  inde- 
pendent, and  can  be  compensated  in  damages,  and  the  covenant  has  in 
other  respects  been  performed,  there,  as  to  the  part  not  complied  with,  the 
covenants  are  to  be  construed  as  independent,  with  the  view  of  attaining 
justice. 

This  would  seem  indeed  to  be  the  case  where  the  contract  is  not  entire, 
even  if  there  had  not  been  an  acceptance  of  part.  For  where  a  man  be- 
came the  purchaser  of  several  lots  of  land,  to  two  of  which  no  title  could 
be  made,  yet  as  these  two  lots  were  not  so  complicated  with  the  others  as 
that  the  possession  of  them  was  essential  to  the  enjoyment  of  the  rest,  the 
purchaser  was  compelled  to  take  the  rest  against  his  will.  2  Br.  C.  C.  118. 
Sugden,  209,  211.  However  this  may  be,  it  is  clear  that  where  performance 
of  part  has  been  accepted,  the  covenant  as  to  the  residue  is  rendered  inde- 
pendent. As  where  the  plaintiff  sold  sixty  combs  of  barley,  and  delivered 
fifty,  which  defendant  accepted,  the  action  lay  for  the  contract  price  of  these 
fifty,  without  proving  the  delivery  of  the  other  ten.  1  Esp.  129.*  So  where 
the  defendant  ordered  six  hogsheads  of  rum,  and  the  plaintiff  sent  only 
three  ;  though  it  was  decided  that  he  might  thereupon  consider  the  contract 
entire,  and  refuse  to  receive  any,  yet  if  he  had  accepted  a  part,  he  could  not 
have  objected  that  the  rest  was  not  delivered,  but  would  have  been  bound  to 
pay  for  what  he  did  get.  1  Camp.  5-3.  So  in  Boon  vs.  Eyre  ;  1  H.  Black. 
273,  n.  a  ;  where  A  sold  to  B  a  tract  of  land  and  a  number  of  negroes, 
and  covenanted  "  that  he  had  good  title  and  was  possessed  of  the  negroes." 
B  covenanted  that  "A  well  and  truly  performing  all  things  on  his  part,  &c. 
he,  B,  would  pay  a  certain  annuity."  In  an  action  for  the  annuity,  B 
pleaded  that  A  was  not  legally  possessed  of  the  negroes,  (which  jjlea  thus 
went  only  to  part  of  the  consideration.)  On  demurrer  the  plea  was  held 
ill,  "for  if  such  plea  were  allowed,  the  fact  that  any  one  negro  was  not  the 
property  of  A,  would  on  the  same  principle  bar  the  action  for  the  price  of 
the  land  and  the  rest  of  the  slaves,  though  B  was  enjoying  the  profit  of  all 
but  one.  Thus,  by  considering  the  covenant  a  condition  precedent,  the 
damages  would  be  unequal,  and  injustice  be  done,  for  A  would  lose  his 
Avhole  purchase  money,  while  B  lost  but  one  negro.  A  reason  for  this  de- 
cision, and  for  that  of  Campbell  vs.  Jones,  (6  T.  R.  570,)  in  addition  to 
that  arit^ing  from  the  inequality  of  damage,  is,  that  where  a  person  has  re- 
ceived apart  of  the  consideration,  it  would  be  unjust  that,  because  he  has 
not  the  whole,  he  should  enjoy  that  part  without  paying  or  doing  any  thing 
for  it.  Therefore  the  law  obliges  him  to  perform,  and  leaves  him  to  an  ac- 
tion to  recover  damages  for  the  injury  sustained  by  his  not  having  received 
the  whole  consideration."      1  Saun.  320,  c.     Lewis  vs.  Weldon,  4  Ran. 

6.  "  Where  the  mutual  covenants  go  to  the  whole  consideration  on  both 
sides,  they  are  mutual  conditions,  and  performance  must  be  averred." 
Saun.  320,  c.  So  that  where  the  contract  is  entire,  and  the  different  parts 
of  the  subject  of  it  so  complicated  together  that  a  part  performance  cannot 
be  Mtivfactfiry,  the  covenants  are  to  be  regarded  as  dependent. 

Of  this  there  are  some  strong  instances  in  the  books:  as  where  the  co- 
Tcnant  was  to  pay  to  a  mariner  £30  on  his  arrival  at  Liverpool  from  Jamai- 

•5  Barn.  &  Cri.-p.378,  acrord.  Bavley  Fays  the  action  must  be  for  tlie  value,  not  for  the  stipul.iied 
prici,'.    >P(I  qii. 

In  Whiiflier  v.  U.iIp.  o  P.nnx  &  Ctcs.  2.19,  the  agrpement  wa?  lo  lei  30  cows.  Part  of  the  lime  23 
only  were  in  ine  le<>!ior'n  poti^ejjion  iii  conseqiienreof  an  arranjirmpnt  between  llie  parties.  The  ac- 
tioa  was  against  the  surety  of  llie  lessee,  and  tlie  phtinliff  was  nou-auitetl,  llie  coulracl  being  held  entire. 


CHAP.  8.]  COVENANT.  1 25 

ca,  provided  he  proceeded,  continued,  and  did  duty  during  the  voyage,  and 
he  died  a  few  days  before  he  reached  the  port :  his  representatives  could 
recover  nothing  for  his  services.  6  T.  R.  3'2U.*  So  in  an  action  of  cove- 
nant on  a  charter  party,  in  which  the  defendant  covenanted  to  pay  so  much 
for  freight  from  Wyburg  to  Liverpool,  and  the  vessel  was  wrecked  before 
she  reached  it,  the  plaintitT  could  recover  nothing  in  this  action  for  average 
freight,  though  the  goods  came  safely  to  the  defendant's  hands.  7  T.  R. 
38*2. t  As  to  the  case  of  a  builder  deviating  from  the  specifications  and  di- 
mensions agreed  on,  the  student  may  consult  3  Taun.  52,  and  1  N.  R.  354. 
These  cases,  however,  were  in  assumpsit,  though  I  am  not  aware  that  that 
would  make  a  diflerence.     7  T.  R.  383.? 

Of  the  brtach  of  the  covenant.  Covenants  are  either  affirmative,  as 
where  the  party  agrees  to  do  a  particular  thing;  or  negative,  as  where  he 
engages  not  to  do  a  particular  thing.  The  breaches  of  these  covenants 
correspond  herewith,  the  affirmative  covenant  being  brokenby  an  omission, 
and  those  which  are  negative,  by  the  commission  of  some  act.  In  like 
manner  where  the  party  covenants  affirmatively  as  to  any  matter — as  that 
he  has  good  title,  the  covenant  is  broken  by  his  not  having  good  title  ;  4 
Cranch,  4-21  ;  or  where  he  covenants  that  there  is  no  incumbrance  upon 
land  sold,  it  is  a  breach  of  this  negative  covenant  if  there  be  an  incum- 
brance. Hence,  the  plea  to  affirmative  covenants  is  "covenants  perform- 
ed," and  to  negative  covenants,  "covenants  not  broken  " 

A  covenant  to  leave  the  property  in  repair,  is  not  broken  till  the  end  of 
the  term  :  but  if  the  lessee  covenants  to  leave  the  property  in  the  same 
plight  in  which  he  receives  it,  the  covenant  is  broken  at  once  by  cutting 
down  trees,  for  now  it  cannot  be  left  in  the  same  plight.     1  Esp.  "277. 

Of  joint  and  several  covenants.  Where  the  interest  of  the  covenantees 
is  joint,  they,  or  the  survivors  of  them,  (2  Sehv.  404,)  must  join  in  the  ac- 
tion as  m  the  case  of  obligees,  and  this,  although  the  covenant  is  expressed 
to  be  joint  and  several.  But  where  the  interest  is  several,  and  the  covenant 
is  by  words  of  severalty,  each  may  sue  separately.  2  Selw.  403.  When 
there  are  two  joint  covenantors,  and  one  only  is  sued,  it  is  said  the  defend- 
ant must  take  advantage  of  the  omission  by  plea  in  abatement.  7  Mod. 
3G0,  cited  2  Selw.  406,  in  note.  See,  also,  1  Saun.  268.  3  Mun.  168. 
But  where  a  covenant  is  several,  as  well  as  joint,  there  one  only  may  be  sued. 
1  Strange,  553. 

Of  covenants  by  or  against  the  heir  or  executor.  Covenants  real,  or  such 
as  are  annexed  to  the  estate,  descend  to  the  heir,  and  he  may  sue  for  a 
breach  in  his  own  time.  But  if  they  are  broken  in  the  ancestor's  lifetime, 
the  cause  of  action  which  belonged  to  the  testator  passes  to  his  executor, 
and  not  to  his  heir.  And  this  is  the  case  even  with  the  covenant  of  seizin, 
which,  being  broken  as  soon  it  was  made,  the  action  goes  to  the  executor, 
and  not  to  the  heir.     4  John.  R.  72. 

So  covenant  lies  against  the  heir  or  executor.  1.  In  personal  covenants; 
and  by  these  the  executor  is  bound  whether  named  or  not :  but  the  heir  is 
not  bound  unless  named.  2.  In  covenants  respecting  real  estate,  as  well 
as  those  relating  to  terms  for  years,  the  executor  is  bound  ;  2  Wash.  155; 
and  for  a  breach  in  his  own  time  as  to  the  latter,  he  is  chargeable  de  bonis 
propriis.  In  like  manner,  the  heir,  when  the  land  descends  on  him,  is  bound 
by  covenants  entered  into  by  his  ancestor,  and  running  with  the  land. 

The  heir,  I  have  said,  is  bound  even  by  the  personal  covenant  of  his  an- 
cestor, if  he  is  named  therein.     But  a  devisee  is  not  chargeable  in  covenant 

»  See  12  C.  L.  Rep.  239.    1  Salk.  65.    12  C.  L.  R.  177.    2  Carr  &  Payne,  370. 

t  Tbese  cases  are  cited  in  2  Evans'  Potliier,  40,  where  there  are  oiliers  also  presented,  together 
■wiUi  some  interesting  retn.n  ks  on  the  question  whellier  an  entire  contract  can  be  apportioned. 

tThougli  in  these  cases  tlie  action  will  not  lie  on  ihe  special  contract,  vet  it  seems  to  have  been 
supposed  that  a  quaatius  meruit  would  lie.  See  7  T.  R.  3S  See,  also,  Ho'oe  &  Harrisou  i-g.  .Masou, 
Z  Wash.  207.  . 


126  COVE.NANT.  [book  3. 

tinder  the  statute  against  fraudulent  devises.  1  R.  C.  ch.  105.  For  that 
statute  is  confined  to  the  action  of  debt.  Wlicn,  therefore,  the  performance 
of  certain  covenants  is  secured  by  bond  with  collateral  condition,  binding 
the  heirs,  it  is  necessary  to  bring  debt  for  the  penalty,  if  it  is  desired  to 
charge  the  lands  in  the  hands  of  the  devisee.     7  E.  1'28.     Sug.  418. 

Of  covenant  by  and  against  assignees.  Of  this  we  have  spoken  else- 
where :  but  here  it  may  be  added,  that  if  a  covenant  extends  to  a  thing  in 
esse  parcel  of  the  demise,  as  a  covenant  to  repair, — to  reside  on  the  land, — 
or  to  leave  a  certain  part  untilled  each  year,  it  becomes  appurtenant  to  the 
thing  demised,  and  the  assignee  is  bound  though  not  named.  See  4  Leigh, 
09.  If  the  covenant  relate  to  a  thing  not  i?t  esse,  but  to  be  done  on  the 
land, — as  a  covenant  to  build  a  new  wall,  the  assignee  is  bound  if  named, 
hut  not  otherwise.  If  the  covenant  is  of  a  maiter  merely  collateral,  as  to 
build  a  house  on  another  piece  of  land,  the  assignee  is  not  bound  though 
named.  2  Selw.  426.  If  a  covenant  relates  to  personal  goods;  as  where 
there  is  a  demise  of  sheep,  and  a  covenant  to  re-deliver  them  at  the  end  of 
the  time,  and  they  are  assigned  over,  the  assignee  is  not  bound  though  na- 
med, because  in  relation  to  personalty  there  is  no  privity  of  estate  as  there 
is  in  the  case  of  realty,  out  of  which  privity  grows  the  assignee's  liability. 
Sehv.  ubi  sup. 

Of  the  pleadings  : — and  first  of  the  declaration.  Most  of  the  rules  to  be 
observed  in  framing  a  declaration  in  debt  or  assumpsit,  govern  in  framing 
the  declaration  in  this  action,  mutalus  mutandis.  Thus  all  the  doctrines  re- 
lating to  the  description  and  pro/ert  of  a  bond,  apply  with  ^qual  force  to 
the  description  snd  profert  of  the  deed  on  which  covenant  is  brought;  and 
the  rules  respecting  averments  of  previous  performance  on  the  part  of  the 
plaintiff,  and  the  setting  out  of  the  breaches  of  the  contract  which  prevail 
in  assumpsit,  equally  govern  in  covenant. 

In  the  commencement  the  suit  is  styled  "  a  plea  of  breach  of  covenants," 
and  care  must  be  taken  that  the  declaration  does  not  begin  in  covenant  and 
end  in  case.  3  H.  &  M.  J 18.  No  statement  of  consideration  is  necessa- 
ry in  this  action,  as  the  seal  itself  is  evidence  of  the  consideration  ;  nor  is 
any  inducement  recpiired,  (stating  the  circumstances  under  which  the  con- 
tract was  made,  and  how  the  defendant  came  to  be  bound,)  except  where 
the  plaintiff  or  defendant  stand  in  a  derivative  character,  as  heir  or  assignee. 
In  setting  out  the  contract  no  unnecessary  matter  should  be  stated.  The 
deed,  it  is  true,  must  be  referred  to,  but  it  is  not  necessary  to  set  forth  more 
of  it  than  is  necessary  to  shew  the  plaintiff's  title  to  his  action.  I  Call,  575. 
G  Mun.  48S.  Indeed  it  is  sufficient  to  state  the  substance  and  legal  effect 
only  of  such  parts  of  the  deed  as  are  necessary  to  entitle  the  plaintiff  to 
recover.  It  is  not  necessary  to  use  the  very  words  of  the  covenant ;  the 
intention  of  the  parties  to  be  collected  from  the  instrument  may  alone  be 
stated.  4H.&,Al.  82.  6  Cranch,  87.  After  setting  out  the  contract,  the 
plaintiff  then  avers  performance  on  his  part,  where  that  is  necessary,*  and 
he  also  avers  any  matter  which  is  necessary  lo  shew  that  he  has  a  distinct 
and  complete  right  ol"  action.  As  on  a  covenant  with  an  overseer  to  pay 
liim  one-tenth  ol"  all  the  grain  made, — the  declaration  should  aver  that 
grain  was  made  ;  though  the  defective  statement  of  that  fact  will  be  cured 
by  a  verdict.  3  Mun.  255.  And  so  in  a  declaration  upon  a  covenant  to 
give  to  the  jjlaintiir  on  his  marriage  with  the  defendant's  daughter  as 
much  as  the  defendant  had  given  to  his  other  children,  there  should  be  an 
averment  that  he  had  given  so  much  to  them.  See  1  Wash.  135.  The  de- 
claration next  proceeds  to  set  out  the  breach  of  the  covenant  by  the  de- 
fendant, which  is  the  essence  of  the  action,  and  must  in  all  cases  be  expli- 

*  Tliniigli  an  nmiiloyer  forbids  liin  luilder  to  go  on  with  tlie  work,  yet  Ciiancelior  Kent  eecms  to 
tljiuk  he  has  a  right  lo  j;o  on^  and  recover  the  full  coinpeneation.    '^  John.  SlU 


CHAP.  8.]  COVENANT.  127 

citly  stated.  Where  the  contract  is  specific — as  to  do  or  forbear  some 
particular  act,  it  is  in  general  sufficient  to  assign  the  breach  in  the  words  of 
the  contract ;  2  H.  &  M.  44G,  459 ;  but  this  is  not  absolutely  necessary,  for 
if  it  be  assigned  in  words  containing  the  sense  and  substance  of  the  con- 
tract, though  not  in  its  very  language,  it  is  sufTicient.  See  1  Wash.  204. 
4  H.  &  JM.  293.  If  there  be  more  breaches  than  one,  they  may  be  all  as- 
signed, and  on  the  trial  no  evidence  can  be  given  of  any  breach  not  charg- 
ed in  the  declaration.  3  Miin.  230.  If  the  contract  is  in  the  disjunctive, 
the  breach  ought  to  set  forth  that  the  defendant  did  neither  of  the  acts. 
But  care  must  be  taken  that  the  breach  does  not  vary  fiorn  the  sense  and 
substance  of  the  contract,  and  that  it  is  neither  more  enlarged  nor  more 
limited  than  the  covenant :  for  if  it  be  larger  than  the  covena?it,  the  demand 
of  the  plaintiff  being  greater  than  he  is  entitled  to,  his  declaration  will  be 
defective  ;  and  if  it  be  too  limited,  or  even  if  at  first  it  be  assigned  gener- 
ally, and  afterwards  narrowed  down  to  some  particular  matter,  it  will  fetter 
the  plaintiff  on  the  trial,  and  tie  him  down  to  the  very  charge,  though  he 
might  have  been  able  to  have  gone  much  farther  in  his  evidence  had  his 
breach  been  more  comprehensive.  The  breach  should  be  direct,  and  not 
by  way  of  recital.  4  H.  &  M.  277.  It  should  also  be  sufficiently  certain 
and  express,  but  as  concise  as  is  consistent  with  these  essential  requisites. 

3  T.  R.  .308.  A  distinction,  indeed,  was  formerly  taken  between  assign- 
ment of  breaches  in  debt  on  bond  with  collateral  condition,  and  such  assign- 
ment in  covenant ;  but  it  is  no  longer  countenanced.  1  Chitty,  325,  &c. 
Lastly,  the  declaration  states  the  damages  sustained  by  the  plaintiff,  which, 
ought  to  correspond  with  those  laid  in  the  writ,  and  be  of  an  amount  suffi- 
ciently large  to  cover  the  probable  finding  of  the  jury,  as  there  cannot  be  a 
judgment  for  more  than  has  been  demanded  by  the  party  injured  himself^ 

4  Mun.  214. 

Of  the  plea.  If  the  covenants  are  affirmative — as  that  the  defendant  will 
do  such  a  thing,  the  plea  is  positive  that  he  did  do  it ;  this  is  the  plea  of 
"  covenants  performed."  If  it  be  negative — as  that  he  will  not  do  such  a 
thing,  the  plea  must  be  negative  that  he  has  not  done  it;  this  is  the  plea 
of  "  covenants  not  broken."  See  Co.  Litt.  303.  And  where  some  are  po- 
sitive and  some  are  negative,  the  defendant  must  plead  affirmatively  to  the 
first,  and  negatively  to  the  last.     Ibid.      1 1  C.  L.  R.  366. 

The  defendant  may  in  this  action,  as  in  an  action  of  debt,  plead  a  gen- 
eral or  special  non  est  factum,  or  a  defeazance  by  deed,  or  an  excuse  for  his 
non-performance, — as  eviction,  or  the  failure  of  the  plaintiff  to  fulfil  a  con- 
dition precedent; — or,  admitting  the  covenant  and  breach,  he  may  plead 
a  release,  or  accord  and  satisfaction,  or  former  recovery,  or  arbitrament  with 
an  award,  or  foreign  attachment,  or  tender  and  refusal,  (See  2  John.  C, 
520,)  or  bankruptcy.  A  plea  of  not  guilty  is  bad,  but  cured  by  a  verdict. 
1  H.  &  M.  153. 

Of  the  evidence.  The  covenant  cannot  be  introduced  as  evidence,  if  it 
be  misrecited.  But  where  there  was  a  joint  and  several  covenant  entered 
int )  by  several  persons  with  the  plaintiff,  and  the  declaration  stated  the 
sealing  by  one  without  noticing  the  others,  this  did  not  prevent  the  deed 
being  introduced  as  evidence,  though  the  matter  might  liave  been  pleaded 
in  abatement.     3Mun.  Ki8. 

Of  the  verdict.  The  verdict  is  for  so  much  in  damages  as  the  plaintiff 
may  shew  he  has  sustained.  If  the  breach  assigned  be  in  not  repairing  ac- 
cording to  covenant,  the  damages  ought  to  be  such  as  to  put  the  premises 
in  repair  at  the  time  of  the  action  brought,  and  ought  so  to  be  applied. 
Salk.  141.  In  Lord  Raymond,  803,  it  is  said  the  jury  should  estimate  these 
damages  according  to  the  state  of  repair  at  the  time  of  the  trial,  and  allow 
the  amount  at  that  time  necessary  to  put  the  premises  in  repair. 


128  ASSUMPSIT.  [  BOOK  3. 

Upon  a  declaration  in  covenant  charging  in  general  terms  the  breach  of 
contract  to  deliver  a  quantity  of  funded  stock,  corn,  flour,  8cc.,  at  a  given 
time,  the  general  measure  of  damages  is  the  value  of  the  article  at  the  time 
it  should  have  been  delivered,  with  interest  from  that  time.  4  Mun.  542, 
30(5,  1  Wash.  1.  In  3  Cranch,  297,  also,  the  value  on  the  day  when  the 
cause  of  action  arose,  seems  to  have  been  considered  the  measure.  But  to 
this  rule,  it  is  said,  there  may  be  exceptions  founded  on  particular  circum- 
stances. 4  Mun.  545.  As,  I  presume,  where  there  has  been  a  great  rise 
in  the  price  of  the  article  since  the  time  of  delivery,  for  otherwise  a  temp- 
tation is  held  out  to  the  party  to  break  his  covenant. 

And  here  we  must  observe  the  difference  between  the  rule  just  stated  in 
cases  of  executory  contracts  for  delivery  of  articles,  and  the  rule  where  a 
party  sues  for  property  already  his,  which  is  withheld  by  his  adversary,  or  has 
been  fraudulently  disposed  of.  In  these  cases  he  recovers  the  value  at  the 
time  of  trial.  I  Wash.  164.  3  Call,  89.  2  H.  &  M.  169.  And  the  like 
rule  prevails  against  a  trustee  who  has  been  guilty  of  a  breach  of  trust. 
As  where  he  sells  stock,  the  c.  q.  t.  is  entitled  to  elect  to  have  the  stock  re- 
placed or  the  highest  price  with  interest.  2  John.  117.  2  Br.  653.  5 
Vez.  800. 

It  seems  that,  in  England,  in  suits  for  breach  of  contract  to  replace  stock 
at  a  given  day,  the  measure  of  damages  is  the  market  price  at  the  time  of 
the  trial  if  the  stock  has  risen  in  the  intermediate  time.  2  E.  211.  2  Taun. 
257.  Yet  in  assumpsit  for  not  delivering  a  quantity  of  bacon  on  an  agreed 
day,  the  measure  of  damages  (no  money  having  been  paid)  is  the  difference 
between  the  contract  price  and  the  price  at  the  day  agreed  on.  Wilde 
contended  that  the  rule  as  to  stock  should  prevail  in  this  case  also ;  but  the 
court  said,  "  In  the  case  of  a  loan  of  stock  the  borrower  holds  in  his  hands 
the  lender's  money,  and  thereby  prevents  him  from  using  it  altogether. 
Here  the  plaintiff  had  hi?  money  in  his  possession,  and  he  might  have  pur- 
chased other  bacon  of  like  quality  the  day  after  the  contract  was  broken, 
and  if  he  has  sustained  a  loss  by  not  doing  so  it  is  his  own  fault.  See  2 
Barn.  &  Cres.  624. 


CHAPTER  IX. 

ASSUMPSIT. 

3.  The  third  species  of  express  contracts  which  we  are  to  consider  are 
promises;   out  of  these  arise  the  action  of  assumpsit. 

"  A  promise  is  in  the  nature  of  a  verbal  covenant,  and  wants  nothingbut 
the  solemnity  of  writing  and  sealing  to  make  it  absolutely  the  same.  If, 
therefore,  it  be  to  do  any  explicit  act,  it  is  an  express  contract,  as  much  as 
any  covenant;  and  the  breach  of  it  is  an  equal  injury.  The  remedy,  in- 
deed, is  not  exactly  the  same  :  since,  instead  of  an  action  of  covenant,  there 
only  lies  an  action  upon  the  case,  for  what  is  called  the  assumpsit  or  under- 
taking of  the  defendant;  the  failure  of  pcrtorming  which  is  the  wrong  or 
injury  done  to  the  plaintiff,  the  damages  whereof  a  jury  are  to  estimate  and 
settle.  As  if  a  builder  promises,  undertakes,  or  assumes  to  Caius,  that  he 
will  build  and  cover  his  house  within  a  time  limited,  and  fails  to  do  it ;  Caius 
has  an  action  on  the  case  against  the  builder,  for  this  breach  of  his  express 
promise,  undertaking,  or  assumpsit;  and  shall  recover  a  pecuniary  satisfac- 
tion for  the  injury  sustained  by  such  delay.  So,  also,  in  the  case  before 
mentioned,  of  a  debt  by  simple  contract,  if  the  debtor  promises  to  pay  it 
and  does  not,  this  breach  of  promise  entitles  the  creditor  to  his  action  on 
the  case,  instead  of  being  driven  to  an  action  of  debt.  Thus,  likewise,  a 
promissory  note,  or  note  of  hand  not  under  seal,  to  pay  money  at  a  day 


CHAP.  9.]  ASSUMPSIT.  129 

certain,  is  an  express  assumpsit ;  and  the  payee  at  common  law,  or  by  cus- 
tom and  act  of  parliament  the  indorsee,  may  recover  the  value  of  the  note 
in  damages,  if  it  remains  unpaid." 

Promises,  however,  are  not  only  express,  but  they  are  often  implied  by 
the  law,  from  the  general  presumption  of  courts  of  judicature,  that  every 
man  has  engaged  to  perform  what  the  principles  of  natural  justice  and  duty 
require. 

Thus,  1.  "  If  I  employ  any  person  to  transact  my  business  for  me,  or 
perform  any  work,  the  law  implies  that  I  undertook  or  assumed  to  pay  him  so 
much  as  his  labor  deserved.  And  if  I  neglect  to  make  him  amends,  he  has 
a  remedy  for  this  injury  by  bringing  his  action  on  the  case  upon  this  implied 
assumpsit;  wherein  he  is  at  liberty  to  suggest  that  I  promised  to  pay  him 
so  much  as  he  reasonably  deserved,  and  then  to  aver  that  his  trouble  was 
really  worth  such  a  particular  sum,  which  the  defendant  has  omitted  to  pay. 
But  this  valuation  of  his  trouble  is  submitted  to  the  determination  of  a  ju- 
ry, who  will  assess  such  a  sum  in  damages  as  they  think  he  really  merited. 
This  is  called  an  assumpsit  on  a  quanlian  meruit. 

2.  "  There  is  also  an  implied  assumpsit  on  a  quantum  valebat,  which  is 
very  similar  to  the  former,  being  only  where  one  takes  up  goods  or  wares  of 
a  tradesman,  without  expressly  agreeing  for  the  price.  There  the  law  con- 
cludes, that  both  parties  did  intentionally  agree  that  the  real  value  of  the 
goods  should  be  paid ;  and  an  action  on  the  case  may  be  brought  accor- 
dingly, if  the  vendee  refuses  to  pay  that  value. 

3.  "  A  third  species  of  implied  assumpsits  is  when  one  has  had  and  re- 
ceived money  belonging  to  another,  without  any  valuable  consideration  giv- 
en on  the  receiver's  part:  for  the  law  construes  this  to  be  money  had  and 
received  for  the  use  of  the  owne*  only;  and  implies  that  the  person  so  re- 
ceiving promised  and  undertook  to  account  for  it  to  the  true  proprietor. 
And,  if  he  unjustly  detains  it,  an  action  on  the  case  lies  against  him  for  the 
breach  of  such  implied  promise  and  undertaking,  and  he  will  be  made  to 
repay  the  owjier  in  damages,  equivalent  to  what  he  has  detained  in  viola- 
tion of  such  his  promise.  This  is  a  very  extensive  and  beneficial  remedy, 
applicable  to  almost  every  case  where  the  defendant  has  received  money 
which  ex  aequo  et  bono  he  ought  to  refund.  It  liesi'or  money  paid  by  mis- 
take or  on  a  consideration  which  happens  to  fail,  or  through  imposition,  ex- 
tortion, or  oppression,  or  where  any  undue  advantage  is  taken  of  the  plain- 
tiff's situation. 

4.  "  Where  a  person  has  laid  out  and  expended  his  own  money  for  the 
use  of  another,  at  his  request,  the  law  implies  a  promise  of  repayment,  and 
an  action    will  lie  on  this   assumpsit. 

5.  "  Likewise,  fifthly,  upon  a  stated  account  between  two  merchants,  or 
other  persons,  the  law  implies  that  he  against  whom  the  balance  appears 
has  engaged  to  pay  it  to  the  other  ;  though  there  be  not  any  actual  promise. 
And  from  this  implication  it  is  frequent  for  actions  on  the  case  to  be  brought, 
declaring  that  the  plaintiff  and  defendant  had  settled  their  accounts  together, 
insimul  computassent,  (which  gives  name  to  this  species  of  assumpsit,)  and 
that  the  defendant  engaged  to  pay  the  plaintiff  the  balance,  but  has  since 
neglected  to  do  it. 

"  But  if  no  account  has  been  made  up,  then  the  legal  remedy  is  by  bring- 
ing a  writ  of  account  de  computo,  commanding  the  defendant  to  render  a 
just  account  to  the  plaintiff,  or  shew  the  court  good  cause  to  the  contrary. 
In  this  action,  if  the  plaintiff  succeeds,  there  are  two  judgments  :  the  first  is, 
that  the  defendant  do  account  (quod  compuiet)  before  auditors  appointed 
by  the  court ;  and  when  such  account  is  finished,  then  the  second  judg- 
ment is,  that  he  do  pay  the  plaintiff  so  much  as  he  is  found  in  arrear.  This 
action,  by  the  old  common  law,  lay  only  against  the  parties  themselves, 
VOL.  2—17 


130  ASSUMPSIT.  [book  3. 

and  not  their  executors;  because  matters  of  account  rested  solely  on  iheir 
own  knowledge.  But  this  detect,  alter  many  fruitless  attempts  in  parlia- 
ment, was  at  last  remedied  by  statute  4  Ann,  c.  IG,  which  gives  an  action 
of  account  against  the  executors  and  administrators.  But,  however,  it  is 
found  by  experience,  that  tlie  most  ready  and  cIT'ectual  way  to  settle  these 
matters  of  account  is  by  bill  in  a  court  of  equity,  where  a  discovery  may  be 
had  on  the  defendant's  oath,  without  relying  merely  on  the  evidence  which 
the  plaintitl  may  be  able  to  produce.  Wherefore  actions  of  account,  to 
compel  a  man  to  bring  in  and  settle  his  accounts,  are  now  very  seldom 
used;  though,  when  an  account  is  once  stated,  nothing  is  more  common 
than  an  action  upon  an  im[)lied  assumpsit  to  pay  the  balance." 

Such  are  Mr.  Blackstonc's  remarks  on  the  action  of  assuinpsit.  It  may 
be  defined  to  be*  "  an  action  whereby  damages  are  recovered  for  the  breach 
of  any  promise,  contract,  or  undertaking.  These  contracts  are  either  ex- 
press or  implied  :  both  are  efiually  grounds  of  this  action  :  for  the  obliga- 
tions of  natural  justice  are  equally  strong  as  the  most  express  promise,  in 
the  eye  of  the  law." 

But  though  the  law  will  imply  a  promise  where  there  is  a  consideration, 
it  will  not  imply  a  consideration  from  a  promise,  except  in  the  case  ot  ne- 
gotiable papers,  as  bills  of  exchange.  A  consideration,  therefore,  must  be 
Slated  and  proved,  either  of  benefit  to  one  party,  or  loss  to  the  other.  4 
East,  194. 

"  Assumpsit  is  of  two  sorts  :  1st,  Indebitatus  assu7npsit,  whicli  in  its  na- 
ture is  an  action  of  debt,  and  lies  in  cases  where  debt  would  lie.  2d.  A 
special  assumpsit,  in  which  the  damages  are  not  in  the  nature  of  debt,  but 
as  a  compensation  for  injury." 

"  On  what  contracts  it  maybe  maintained.  These  contracts  are  either  im- 
plied or  express." 

"  1;  Of  implied  contracts.  Assumpsit  being  in  its  nature  an  equitable  ac- 
tion, it  is  a  general  description  of  all  cases  wherein  it  lies,  that  the  defend- 
ant is  obliged  by  ties  of  natural  equity  and  justice  to  refund  money  which 
he  may  have  received  of  the  plaintilf,  or  to  pay  it,  if  the  plaiutiif  has  a  le- 
gal right  to  demand  «he  same."     2  Burr.  1012.     4  M.  &  Sel.478. 

Hence,  this  kind  of  .-Jition  embraces  a  great  variety  of  transactron-s; be- 
tween man  and  man,  though  it  is  confined,  indeed,  to  agreements  by  parol. 
It  lies  for  the  price  of  goods  bold  and  delivered  ;  it  is  the  proper  action  to 
recover  comi)eiisation  for  work  and  labor,  or  service  done  for  the  defendant. 
It  lies  for  the  balance  due  upon  seti'.ement  of  accounts  ;  for  the  hire  of  an 
article,  and  even  for  the  rent  of  land  either  upon  an  express  or  implied 
promise.  4  H.  &  I\I.  1(31.  I  Mun.  407.  1  T.  R.  378.  It  lies  to  recover 
back  money  paid  to  one  acting  under  a  void  authority,  or  paid  under  an 
erroneous  judgment,  which  is  reversed,  (7  T.  11.  2(i9,)  provided  it  appears 
the  party  had  actually  received  the  money,  or  tliat  it  Was  applied  to  his  use, 
which  is  essential.  2  Mun.  272.  It  is  said,  however,  that  general  indebi- 
tatus assumpsit  will  not  lie  for  the  price  of  land.  See  1  H.  Sc  M.  378.  In 
such  case  the  suit  should  be  brought  on  the  special  contract,  for  such  there 
must  be  of  course  in  the  sale  of  land.  But  assumpsit  will  lie  for  money 
paid  by  a  vendee  for  a  tract  of  land,  where  the  vendor  cannot  make  him  a 
title.  1  Esp.  Rep.  loO.  3  Bos.  Sc  Pul.  162.  In  .such  case,  however,  the 
vendor  cannot  maintain  assumpsit  for  the  use  and  occupation  by  the  ven- 
dee.    2  Taun.  145.     For  besides  that,  the  person  entitled  to  the  land  is  cn- 

•TliP  paBsacPs  wliich  fillow  l)PtwRen  inverlpd  (•ommas.  under  lliis  head  of  assumpsit.  :ire  lal<era 
from  l>i).n:i-s.-  s  t.iH  priiiH  Tl.ouu'li  the  work  is  li:.l)le  (o  miiny  ol/|C<-lions,  1  have  considered  il,  on 
the  who  e,  l.eiier  caiciilalcd  for  our  rmrpoM-s  than  aiiv  other,  because  it  i«  more  comprelicnsive  ;  and 
1  have  IhouEl.l  it,  moreover,  more  advisat.lc;  to  a.lopi  ii  {-^i  I  liavc  partly  done)  than  to  undertake  an 
entirely  new  e^say  on  the  mil.,ect  ol  thin  action.  I  liavc  endeavored,  howevc;-,  to  correct  some  errors, 
«qJ  have,  moreover,  only  extracted  the  i  rinciples. 


CHAP.  9.]  ASSUMPSIT.  131 

titled  to  the  renis  and  profits;  the  express  contract  by  which  the  vendee 
held  as  purclinser,  negatives  the  implied  contract  to  pay  rent  as  tenant. 

In  like  manner,  assumpsit  will  lie  to  recover  money  paid  or  delivered  to 
tlic  defendant  for  the  plaintiff's  use.  And  so  it  will  lie  ajrainst  a  sheriff  for 
money  collected  by  himself  or  his  deputy  for  the  plainliff,  though  in  this 
case  the  declaration  ought  to  be  special,  so  as  to  distinguish  the  demand 
from  one  against  him  in  his  private  capacity.  2  Wash.  17"2,  180.  To  be 
more  particular,  this  action  lies — 

"  1.  To  recover  back  money  paid  under  a  mistake,  or  through  the  deceit 
of  the  other  party."  1  T.  R.  343,  112,  285.  The  case  of  money  paid  in- 
to court  is  an  exception  to  this  rule.     2  T.  R.  048. 

Where  a  creditor  paid  to  the  jailer,  by  mistake,  prison  fees  which  it  turn- 
ed out  he  was  not  bound  to  pay,  he  recovered  them  back  in  this  action.  1 
Call,  540. 

If  two  persons  account  together,  and  one  by  mistake  overpays  the  other, 
ho  may  recover  back  the  excess  in  this  action.  2  Lord  Ray.  1217.  Doug. 
637.  2  Esp.  Ca.  522.  3  Mass.  74.  Though  both  parties  labor  under  the 
laislake,  yet  the  party  paying  may  recover  back  what  he  has  paid.  6  T. 
R.  (>06. 

But  where  there  is  a  loss  occasioned  by  mistake,  and  both  parties  are 
equally  innocent,  the  law  does  not  interfere  between  them,  but  leaves  the 
loss  as  it  finds  it.  Thus,  where  money  is  paid  upon  a  forged  bill  of  ex- 
change to  a  bona  fide  holder  who  had  given  value  for  it,  the  payer  could  not 
recover  it  back,  the  laches,  if  any,  being  on  his  part.  3  Bur.  1354.  So, 
though  the  payment  could  not  have  been  enforced  by  law,  yet  if  ihe  party 
might  conscientiously  receive  it,  he  cannot  be  compelled  to  refund  :  1  Dall. 
147  :  as  where  a  father  pays  the  debt  of  his  son,  though  contracted  without 
authority,  and  not  for  necessaries. 

So,  too,  if  the  payuient  be  made  with  a  full  knowledge  of  facts,  or  if  the 
party  hath  culpably  failed  to  inform  himself,  it  seems  he  cannot  recover 
back  what  he  has  paid.  4  Barn.  &  Cres.  272.  1  C.  L.  R.  46.  2  Leigh, 
76.  As  where  A  paid  B  for  the  use  of  a  patent,  and  he  af:erwards  disco- 
vered that  another  was  the  patentee,  it  was  decided  he  could  not  recover 
back  vv'hat  he  had  paid.  1  Bos.  &  Pul.  230.  So  where  he  paid  a  debt  and 
afterwards  found  a  receipt,  he  was  not  permitted  to  maintain  this  action. 
2  Esp.  Ca.  543.  Sed  qucere  as  to  these  cases  ;  for  equity  would  relieve,  and 
this  action  is  an  equitable  action. 

If  money  is  paid  upon  a  compromise  pending  an  action,  and  it  be  afters- 
wards  discovered  that  there  was  a  mistake  or  fraud,  it  may  be  recovered 
back.     4  T.  R.  131. 

"2.  This  action  lies  to  recover  monev  paid  for  a  consideration  which  hap- 
pens to  fail."     1  T.  R.  732.     2T.  R.  366. 

This,  as  has  been  said  elsewhere,  is  the  foundation  of  the  action  of  the 
assignee  against  the  assignor  of  a  bond,  where  he  has  been  unable  to  obtain 
the  amount  from  the  obligor.     See  2  Wash.  2U>,  232. 

In  like  uianner,  the  purchaser  of  a  bill  of  exchange,  which  is  lost  before 
it  is  presented,  may  bring  this  action  to  recover  back  what  is  paid,  (if  the 
drawer  refuse  to  give  another  hi!!,)  and  declare  for  money  ha'i  and  received 
to  his  use.  3  Call,  373.  In  such  case,  he  is  entitled  by  law  to  demand 
another  bill,  upon  giving  sufficient  security  to  indemnify  the  drawer  against 
the  first.  1  R,  C.  ch  125,  §3.  I  presume,  therefore,  the  tender  of  such 
security  is  essential  to  entitle  the  purchaser  to  his  action.  Such  tender  was 
proved  in  the  case  above  cited. 

In  assumpsit  by  the  vendee  against  the  vendor  of  land  to  recover  back 
the  price  because  the  title  is  defective,  it  is  necessary  to  prove  the  title  bad, 
but  not  to  prove  eviction.     Such  action  may  be  maintained  against  the  a- 


132  ASSUMPSIT.  [book  3. 

gent  to  whom  the  money  was  paid,  if  he  pays  it  over  to  the  principal  after 
notice  not  to  do  so  on  account  of  objections  to  the  title.     5  Bur.  *2G39. 

"3.  This  action  lies  to  recover  back  money  paid  to  any  one  acting  un- 
der or  in  pursuance  of  a  void  authority." 

As  where  an  attorney  under  a  power  from  A,  forged  by  B,  brought  suit 
against  C,  who  paid  him  the  money,  and  he  paid  it  over  to  B ;  C  was  obli- 
ged to  pay  it  over  again  to  A,  but  was  held  entitled  to  recover  what  he  had 
paid  from  the  attorney,  whose  authority  to  receive  it  was  forged,  and  there- 
fore void,     1T.K.59. 

That,  however,  is  not  considered  a  void  authority  which  is  given  by  a 
court  of  competent  jurisdiction.     3  T.  R.  125. 

If  a  person  pays  a  forged  order  or  draft,  it  is  no  discharge  against  the 
real  creditor.  3  T.  II.  1-25,  127.  As  to  proof  of  identity  of  payee,  see  2 
Barn.  &  Cres.  434. 

"4.  This  action  lies  to  recover  back  money  obtained  from  any  one  by 
extortion,  imposition,  oppression,  or  takins^  an  undue  advantage  of  the  par- 
ti/s  situation."     See  2  Str.  915.     Doug.  071.     2  T.  R.  763. 

So  where  a  person  in  an  oflicial  station  extorts  money,  or  charges  exor- 
bitant fees,  this  action  lies.  Cow.  204.  4  T.  R.  485.  As  against  a  jailer 
who  demands  and  receives  of  a  debtor  more  than  the  prison  fees  allowed 
by  law.     3  Esp.  N.  P.  Ca.  231. 

Where  a  party  who  is  bound  to  allow  another  some  uncertain  compen- 
sation for  a  service  or  other  thing,  voluntarily,  and  without  oppression  or 
fraud  fixes  and  agrees  upon  the  amount,  and  pays  it  accordingly,  he  can- 
not afterwards  recover  back  any  part  on  the  ground  that  it  was  extravagant : 
for  it  was  ascertained  by  his  own  free  assent.     4  John.  Rep.  240. 

"5.  This  action  lies  to  recover  back  money  embezzled,  or  which  any  per- 
son has  been  defrauded  of  by  cheating,  or  otherwise." 

So  it  lies  to  recover  back  money  lost  at  play,  and  infancy  is  no  bar  to  such 
an  action. 

"6.  If  money  has  been  recovered  in  consequence  of  hny  judgment  or 
adjudication,  if  such  was  erroneous,  and  is  reversed  ;  or  if  money  has  been 
paid  in  consequence  of  the  judgment  of  an  inferior  court,  where,  from  the 
limits  of  its  jurisdiction,  the  merits  could  not  be  tried,  it  shall,  in  this  action, 
be  recovered  back  again.     Bur.  1009.     7T.  R2G9.     See  2  Mun.  272,  274. 

"  7.  Where  any  species  of  contract,  or  other  matter,  is  by  law  or  statute 
declared  to  be  illegal  and  void,  money  paid  in  consequence  of  such  con- 
tract may  be  recovered  back  by  this  action  by  the  party  who  paid  it,  provi- 
ded he  was  not  himself  a  parliceps  criminis  in  the  illegal  transaction." 

Thus,  money  paid  for  usurious  interest  may  be  recovered  back.  Talb.  Ca. 
39.  Doug.  697.  IT.  R.  153.  For  the  borrower  is  not  ;jan  rfe/ic/o.  He 
is  the  slave  of  the  lender,  as  Lord  Mansfield  has  strongly  remarked.  So  of 
money  lost  at  play. 

He  who  has  committed  the  illegal  act  shall  not  be  allowed  to  recover 
back  money  he  may  have  so  paid  illegally.     Cow.  790.     See  1  Ran.  76. 

And  here  note  that  every  contract  made  for  or  about  a  matter  prohibited 
by  statute,  is  void,  though  the  statute  do  not  so  declare,  but  only  inflicts  a 
penalty  :  for  a  penalty  implies  a  prohibition.  Cnrth.  252.  1  Taun.  136. 
i  Ran.  76. 

Moreover,  a  contract  made  illegal  by  statute,  is  not  rendered  good  by  re- 
peal of  the  statute.     1  H.  B.  65. 

All  wagering  contracts  are  made  void  by  our  acts  against  gaming.  1  R. 
C.  ch.  147.  Hence  the  action  of  assumpsit  does  not  lie  in  Virginia  upon 
any  wager;  for  our  act  is  more  comprehensive  than  the  English  statute,  in- 
asmuch as  it  avoids  all  contracts  on  any  wager  whatsoever,  whereas  the 
English  act  has  not  the  term  "  contracts,"  but  only  avoids  the  "  securities," 


CHAP.  9.]  ASSUMPSIT.  133 

i.  e.  bonds,  mortgages,  &c.  given  to  secure  a  gambling  debt.     2  Str.  1249. 
2  Bur.  107S. 

"  6.  Wherever  the  law  has  given  to  any  person  certain  fees  or  rewards 
for  his  etnployment  or  labor,  in  this  action  they  arc  recoverable."  But  they 
must  be  settled  fees,  not  mere  gratuities.     G  T.  R.  GS2. 

"  9  Wherever  the  law  has  imposed  any  duty  upon  a  person,  and  given 
him  certain  allowances  or  charges  for  it,  lie  shall  recover  them  in  this  ac- 
tion ;  but  in  such  case  the  duty  must  be  performed,  and  the  party's  claims 
be  limited  accordingly." 

10.  This  action  lies  where  one  man  at  an  other's  request,  or  as  his  secu- 
rity, pays  or  lays  out  money  for  him.  The  action  is  then  an  action  "  for 
money  paid,  laid  out,  and  expended." 

Before  we  pass  from  this  part  of  our  subject,  I  will  add  a  kw  remarks. 

Implied  assumpsits  are  only  raised  by  lav»-  where  there  is  no  open  and  sub- 
sisting express  agreement  under  which  the  party  may  have  his  redress. 
Where  there  is  such  an  open  and  subsisting  express  agreement,  none  can 
be  implied.  See  6  T.  R.  3"2"2,  324.  For  though  a  man  is  in  justice  en- 
titled to  recover  the  worth  of  his  labor  or  of  his  goods  where  there  is  no 
stipulated  price,  yet  as  he  has  a  right,  if  he  pleases,  to  contract  for  less 
than  they  are  worth,  he  cannot,  when  he  has  once  done  so,  remit  himself 
back  again  to  a  title  to  a  greater  compensation.  Hence,  if  a  man  declares 
on  a  quantum  meruit  or  quantum  valebat,  he  will  be  non-suited  if  it  appears 
■on  the  trial  that  he  contracted  for  a  particular  price  for  his  labor  or  goods. 
1  Str.  648.     2  Saun.  122. 

It  may  be  said,  then,  that  there  are  three  classes  of  cases  in  which  im- 
plied assumpsits  may  be  raised :  1.  When  there  never  was  an  express 
agreement  at  all ;  but  the  agreement  is  implied  by  the  law  ;  as  where  mo- 
ney has  been  received  by  another  for  my  use,  or  I  have  paid  money  for 
him  or  sold  him  goods  without  fixing  a  price,  &,c.  2.  Where  there  has 
been  an  express  contract,  but  that  contract  being  rescinded,  he  who  has 
advanced  his  money  upon  it  seeks  to  recover  back  that  money.  As  if  I 
advance  ten  pounds  for  the  building  of  a  house,  and  by  mutual  consent 
the  bargain  is  rescinded,  the  contract  is  at  an  end,  and  I  may  recover  back 
ray  ten  pounds  by  indebitatus  assumpsit.  Here  the  contract  is  ended  by 
mutual  consent.  It  is  the  same  thing  where  it  is  agreed  that  one  of  the 
parties  may  rescind  it  at  his  option.  Thus,  if  I  pay  ten  pounds  for  a  horse, 
and  it  is  agreed  I  may  return  him  in  ten  days  if  I  do  not  like  him,  upon 
paying  fifty  cents  per  day  for  his  hire,  and  I  do  return  him  and  tender  the 
hire,  the  contract  is  at  an  end,  and  I  may  recover  back  my  ten  pounds, 
whether  my  adversary  choose  to  take  back  the  horse  or  not ;  for  in  this 
case  the  power  of  putting  an  end  to  the  contract  was  left  to  me,  and  I  have 
exerted  it.  See  1  T.  R.  133.  So  if  I  pay  money  in  part  of  the  purchase 
of  an  estate  and  I  prove  that  the  vendor  cannot  make  a  title,  I  may  recov- 
er back  my  money  by  indebitatus  assumpsit ;  8  T.  R.  516.  3  B.  &  P.  181  ; 
for  as  the  contract  cannot  be  carried  into  eftect  because  my  vendor  cannot 
make  me  a  good  title,  it  may  well  be  looked  upon  as  void  at  my  option  ;  and 
this  option  is  manifested  by  my  suing  for  my  money  in  indebitatus  assump- 
sit ;  though  I  miufht  indeed  have  sued  for  damages  upon  the  contract  itself. 
So  if  1  pay  ten  pounds  to  A,  in  consideration  of  which  he  engages  to  trans- 
fer to  me  a  share  of  bawk  stock,  which  he  refuses  to  do  on  demand,  I  may 
recover  back  the  ten  pounds.  For  the  refusal  on  his  part  terminates  the 
contract  absolutely  as  to  him  ;  and  though  I  might  still  affirm  the  bargain 
and  sue  him  under  the  bargain  for  damages,  yet  I  may,  if  I  please,  disafiirm 
the  contract:  I  may  consider  it  at  an  end.  and  sue  on  the  implied  contract 
for  the  ten  pounds.  But  though  where  the  contract  is  rescinded,  the  action 
lies,  yet  it  must  bo  observed,  that  notwithstanding  the  default  of  one  party, 


134  ASSUMPSIT.  [book  3. 

the  other  cannot  rescind  it  unless  both  can  be  put  in  statuo  quo.  As  where 
A  let  a  house  to  B  for  £,\{),  which  was  paid  him,  and  he  agreed  to  repair  in 
a  given  time,  and  failed  :  B  couhl  not,  after  liolding  possession  some  time, 
quit  the  premises  and  recover  back  his  d£10,  but  must  sue  on  the  special 
contract  for  damages.     5  E.  449. 

3.  Nor  is  it  only  where  an  express  agreement  has  been  rescinded  or  a- 
"voided,  or  considered  void,  that  the  action  of  indebitatus  assumpsit  lies.  It 
lies  equally  where  the  terms  of  a  special  agreement  have  been  performed, 
so  as  to  leave  a  mere  simi)le  debt  or  duty  between  the  parties.  In  the  for- 
mer case,  indeed,  it  lies  to  recover  back  money  advanced  on  the  rescinded 
contract ;  which  money  (as  the  contract  is  rescinded)  it  is  not  equitable  that 
the  defendant  should  continue  to  hold.  In  the  latter  it  lies  for  the  price  of 
the  service  performed,  or  article  sold,  &c.  Thus,  if  I  employ  an  overseer 
at  an  hundred  pounds  per  annuui,  and  he  serves  the  year  out,  he  may  after 
its  expiration  sue  in  indebitatus  assumpsit,  or  on  the  original  executory 
agreement  at  his  option  ;  "2  Mun.  315;  or  a  count  for  each  may  be  inserted 
in  the  declaration.  But  this  principle  only  extends  to  cases  where  the  re- 
muneration is  in  money.  Id.  So,  if  goods  are  to  be  paid  for  at  a  specifi- 
ed time,  indebitatus  assmnpsit  will  lie  when  the  time  has  expired.  4  E.  147. 
And  in  these  cases  the  declaration  charges  that  the  defendant  was  indebted 
so  much  for  services  rendered,  or  goods  sold,  and  being  so  indebted  he  as- 
sumed to  pay. 

We  shall  now  endeavor  to  present  some  cases  in  which  the  indebitatus 
assumpsit  will  not  lie,  because  there  is  still  considered  to  be  an  open,  sub- 
sisting, express  agreement.  Thus  where  money  is  paid  by  me  as  the  price 
of  a  horse  warranted  to  be  sound,  and  he  turns  out  to  be  unsound,  I  cannot 
sue  to  recover  back  my  money,  but  I  must  sue  upon  the  warranty  :  Doug. 
24,  23.  Cow.  818.  7  E.  274.  I  T.  11.  133.  For  1  have  no  right  to  set 
aside  the  contract,  which  would  be  the  effect  of  my  recovering  back  what 
I  had  paid.  I  must  be  content  with  the  remedy  I  [)rovided  for  myself,  viz. 
a  suit  upon  the  waiTantv.  The  contract,  indeed,  so  far  as  relates  to  the  sale, 
is  complete  and  closed,  but  so  far  as  respects  the  icarranty  (the  remedy 
which  I  have  provided  lor  myself)  it  is  still  open  and  subsisting;  so  that  the 
case  comes  precisely  within  the  principle  above  announced,  that  where 
the  party  has  made  an  express  agreement  he  shall  not  set  up  an  implied 
one ;  where  he  has  provided  a  particular  redress  he  shall  not  be  permitted 
to  resort  to  another.  For  neither  party  has  a  right,  without  the  consent  or 
fault  of  the  other,  to  rescind  his  own  contract ; — to  waive  the  redress  he  has 
himself  contracted  for; — to  abandon  the  remedy  agreed  on,  for  another, 
which  perhaps  may  give  him  greater  advantages  over  his  adversary. 

I  have  been  thus  particular  as  to  this  matter,  because  there  has  always 
appeared  to  me  to  be  some  obscurity  on  the  subject,  arising  from  the  ele- 
mentary writers  having  omitted  to  exj)lain  the  principles  upon  which  the 
rule  has  been  adopted. 

We  now  proceed  to  speak  "  of  express  contracts.  1.  Those  arising  on 
sales.  If  a  contract  is  made  on  a  sale,  it  is  always  supposed  that  the  ven- 
dor has  a  good  title;  if,  therefore,  there  is  any  concealment  of  the  circum- 
stances affecting  the  title,  and  the  vendee  has  paid  the  purchase-money,  he 
may  waive  the  bargain,  and  recover  back  his  money.     5  Eur.  2639. 

"  And  where  a  purchase  is  made  at  an  auction,  though  it  may  consist  of 
several  lots,  if  from  the  nature  of  the  contract  it  is  entire,  the  seller  must 
make  a  complete  title  to  the  whole  of  it;  for  otherwise  the  buyer  may  con-- 
sider  the  bargain  as  void,  and  recover  back  his  deposite."      Esp.  Ca.  150. 

The  doctrine  here  laid  down  seems  most  usually  to  conic  under  discus- 
sion in  courts  of  equity  upon  (piestions  of  specific  performance;  I  shall 
therefore  not  enter  upon  it  at  large  in  this  place.     It  may  be  added  here, 


CHAP.  9.]  ASSUMPSIT.  135 

however,  that  the  buyer  cannot  recover  damages  for  the  supposed  loss  of  a 
good  barirain  :  2  Bl.  Rep.  lOT^i  :  though  the  vendor  is  liable  to  the  expen- 
ses iiicuned  in  the  course  of  the  business,  as  for  conveyances,  &c.  Esp. 
Ca.  *2ti3.  Tlio  auctioneer  should  not  pay  over  the  deposite  until  the  trans- 
action is  complete,  and  if  he  does  he  will  himself  be  liable,  for  he  is  stake- 
holder, and  should  wait  to  see  to  whom  the  stake  belongs.     5  Bur.  iiG-39. 

"  And  where  things  are  sold  by  auction,  and  in  the  j)riiited  conditions  of 
sale  there  is  a  statement  and  warranty  of  the  title,  the  things  shall  be  deem- 
ed to  be  sold  under  such  title,  and  the  declarations  of  the  auctioneer  at  the 
time  shall  not  be  admitted  to  vary  or  quality  it."      1  H.  B.  '289. 

In  Grantland  vs.  Wight,  (2  Mun.  179,  183,)  it  was  expressly  decided 
that  a  public  and  formal  notification  at  the  time  of  a  sale,  that  the  sale  was 
made  according  to  certain  metes  and  bounds,  then  and  there  specified, 
with  information  of  probable  deficiency  in  quantity  called  for  by  the  deeds, 
was  "  entirely  competent  to  do  away  the  effect  of  a  previous  advertisement 
representing  the  property  as  containing  a  certain  quantity." 

Where  there  has  been  a  fraud  in  the  sale,  the  buyer  may,  upon  discove- 
ry thereof,  disaffirm  it,  waive  the  bargain,  and  sue  for  what  he  may  have 
paid,  provided  there  is  no  possession  delivered  to  the  vendee  of  the  things 
purchased,  or  the  goods  so  purchased  have  been  relumed ;  when  they  are, 
the  contract  is  at  an  end,  and  the  plaintiff"  may  sue  for  the  money."  1  T. 
R.  133. 

"  And  as  the  contract  must  be  at  an  end  before  this  action  can  be  main- 
tained, so  it  must  be  rescinded  by  the  party  who  means  to  sue  for  the  mo- 
ney paid,  in  a  reasonable  lime,  as  otherwise  he  must  sue  on  the  special 
contract  itself,  and  recover  damages  for  the  breach  of  it."  2  H.  B.  573. 
"  And  in  such  case  the  plaintiff"  must  declare  on  the  warranty  or  special 
agreement  itself,  as  assumpsil  for  money  had  and  received  will  not  lie. 

"  If  the  vendor  takes  upon  himself  the  delivery  of  the  goods  purchased 
to  the  vendee,  he  stands  all  risks  ;  but  if  the  vendee  points  out  the  particu- 
lar mode  of  conveyance  by  which  the  goods  are  to  be  sent,  and  the  vendor 
sends  them  according  to  such  direction,  and  they  miscarry,  the  vendee  must 
stand  at  the  loss.     Cow.  296. 

"  Where  goods  are  sold  by  auction,  the  sale  is  not  complete  to  bind  the 
buyer  to  the  purchase,  till  the  lot  is  aciually  knocked  down  to  him,  until 
which  time  he  may  retract  his  bidding."     3  T.  R.  148. 

"  If  the  owner  of  goods  or  an  estate  sold  by  auction  employs  puffers  to 
bid  for  him  without  declaring  it,  it  is  a  fraud  on  the  real  bidders,  and  the 
highest  bidder  cannot  be  compelled  to  complete  the  purchase  made  under 
such  circumstances."     6  T.  R.  612. 

An  agreement  between  two  persons  at  u  public  sale  not  to  bid  against 
each  other,  is  void.     6  John.   194. 

Where  a  sale  is  on  credit,  tlie  credit  cannot  be  retracted  ;  but  it  is  other- 
wise where  it  is  voluntary  and  subsequent  to  the  sale.  1  Esp.  Ca.  430. 
And  where  a  sale  was  on  a  credit  of  three  months,  payable  by  a  bill  of  two 
months,  though  the  bill  be  not  given,  the  seller  cannot  sue  in  assumpsit  for 
the  money  at  the  end  of  three  months,  but  may  bring  a  special  action  on 
the  case  for  failure  to  deliver  the  bill.  4  E.  147.  3  B.  &  P.  582.  But 
after  the  expiration  of  the  five  months  he  may  maintain  assumpsit  for  the 
price,  if  the  defendant  has  refused  to  make  payment  in  a  bill,  for  then  the 
credit  has  completely  expired.     4  B.  &  P.  330. 

Where  by  the  terms  of  a  sale  the  property  is  not  to  be  removed  till  secu- 
rity given,  it  remains  the  vendor's  property  until  the  terms  be  complied 
with.  4  Mass.  495.  And  where  a  sale  has  been  completed  and  the  ven- 
dee refuses  to  receive  the  articles,  or  pay  for  them,  they  may  be  re-sold, 


136  ASSUMPSIT.  [  BOOK  3. 

and  the  difTerence  recovered  of  him  in  this  action  by  the  vendor.     3  John. 
395. 

"  2.  Another  ground  of  this  action  is  that  for  use  and  occupation."  To 
what  has  been  aheady  said  on  this  subject,  in  a  former  part  of  this  volume, 
I  will  only  add  a  few  remarks. 

The  act-on  lies  on  an  implied  as  well  as  an  express  undertaking.  4H.  & 
M.  161.  1  Mun.  407.  But  it  lies  only  where  the  tenant  holds  by  permission, 
not  by  wrong.  2  H.  B.  820.  1  T.  R.  378.  Nor  will  it  be  countenanced 
where  the  premises  are  expressly  let  for  an  unlawful  purpose — as  for  a 
brothel. 

It  is  no  defence  to  the  action  to  say  that  the  landlord's  title  was  not 
good  ;  and  nil  habuit  in  tenementis  has  accordingly  been  held  to  be  a  bad 
plea.     5T.  R.4.     1  Wils.  314. 

Where  a  lease  is  expired,  the  lessor  may  maintain  this  action  against  the 
lessee  for  the  occupation  after  the  expiration  of  the  term,  unless  the  lessee 
delivers  up  complete  possession  to  the  lessor,  or  the  lessor  is  willing  to  ac- 
cept the  undertenant  of  the  lessee  in  case  he  has  underlet.     1  Esp.  Ca.  57. 

3.  Bills  of  exchange  and  promissory  notes  form  the  next  class  of  express 
contracts  which  give  rise  to  actions  of  assumpsit.  They  will  be  passed 
over  here,  the  subject  being  of  itself  sufficiently  comprehensive  for  a  sepa- 
rate treatise,  and  the  student  is  recommended  to  consult  on  this  important 
subject,  Chitty  on  Bills  and  Baley  on  Bills. 

"  Having  thus  considered  what  will  maintain  this  action,  we  now  proceed 
to  consider 

"  ^Vhat  contracts  will  not  support  an  assumpsit.  1.  This  action  being 
founded  either  on  an  express  or  an  implied  undertaking,  whenever  the  pre- 
sumption of  such  contract  or  undertaking  is  excluded,  as  where  it  appears 
that  money  for  which  the  action  was  brought  was  paid  against  the  will  of 
the  person  sued,  there  this  action  will  not  lie."      1  T.  R.  20. 

Yet  where  the  plaintiff,  to  prevent  the  protest  of  abill  of  exchange  drawn 
by  the  defendant,  agreed  to  be  responsible  to  the  drawers,  and  paid  it  ac- 
cordingly, this  was  considered  sufficient  to  raise  an  implied  promise;  1 
Wash.  372,  379;  but,  generally,  no  man  can  by  a  voluntary  payment  of  the 
debt  of  another,  make  himself  his  creditor,  and  then  sue  for  the  amount  so 
paid.  8  T.  R.  610.  A  security,  however,  is  not  within  this  rule,  for  being 
bound  for  the  debt,  he  has  a  right  to  discharge  it.     Ibid. 

"  2.  A  mere  voluntary  courtesy  will  not  support  an  assumpsit.  And  that 
shall  be  deemed  a  voluntary  courtesy  which  has  been  undertaken  without  a 
prospect  of  certain  recompense.^' 

As  where  a  service  is  performed  in  contemplation  of  a  legacy.  Though 
the  party  be  disappointed,  he  cannot  bring  his  quantum  meruit  for  compen- 
sation.    2  Str.  729. 

"  But  if  there  was  any  request  made  by  the  defendant,  there  the  acts  shall 
be  presumed  and  construed  to  be  not  voluntary,  but  done  in  pursunnce  of 
the  recpiest ;  and  this  action  will  then  lie.  But  though  a  request  has  been 
made,  yet  if  it  was  in  consequence  of  the  fraudulent  offer,  advice,  or  induce- 
ment of  the  other  party,  it  will  not  support  this  action."  In  5  John.  C.  C. 
531,  commissions  and  compensation  were  refused  to  an  agent  of  an  ad- 
ministratrix, who  acknowledged  he  had  undertaken  the  agency  from  mo- 
tives of  benevolence,  and  as  a  friend  to  the  family. 

In  reference  to  this  rule,  however,  "  it  should  seem  that  any  thing  done 
in  the  course  of  a  person's  business  or  employment  shall  not  be  deemed  a  vo- 
luntary courtesy,  but  the  foundation  of  a  contract." 

"3.  This  action  will  not  lie  for  breach  of  agreement  which  could  not  be 
legally  performed,  or  where  the  consideration  on  which  it  is  founded  arises 


I 


CHAP.  9.]  ASSUMPSIT.  137 

from  an  illegal  act."     5  T.  R.  242.     2  H.  B.  380.     6  T.  R.  51, 405.     S  T. 
R.  418.     1  Ran.  70.     7  T.  R.  630.     2  B.  &  P.  .371. 

"So,  thoutrh  the  consideration  be  but  in  part  unlawful,  yet  it  shall  vitiate 
the  action,  which  is  founded  on  the  whole  consideration  taken  together. 
On  this  ground  money  won  at  gaming  would  not  be  recoverable."  And  in 
the  law  of  Virginia  there  is  no  exception  of  any  kind  of  wager.  1  R.  C.  ch. 
147. 

"  And  though  the  plaintiff  in  this  action  has  not  been  a  party  to  the  illegal 
transaction,  yet  where  the  assumpsit  has  arisen  from  it,  and  he  knows  of  it, 
he  cannot  recover."     2  Wils.  133. 

As  where  persons  abroad  sell  goods  for  the  purpose  of  being  smuggled 
into  our  ports,  and  aid  in  packing  them  in  a  peculiar  manner  to  avoid  de- 
tection, they  can  maintain  no  action  in  our  courts  lor  the  price  of  the  goods. 
5  T.  R.  596.  And  though  a  distinction  was  once  drawn  between  the  case 
of  foreigners  and  the  citizens  of  the  country,  (Cow.  .341.  13  T.  R.  454,) 
it  seems  no  longer  to  prevail.  5  T.  R.  596.  4  T.  R.  466.  But  in  these 
cases  a  knowledge  of  the  illeoral  intent  seems  to  be  essential. 

"  And  though  the  consideration  is  a  matter  not  expressly  contrary  to  law, 
yet  if  it  be  contrary  to  the  policy  of  the  laiv  to  support,  this  action  cannot 
be  maintained."     3  T.  R.  17. 

"  4.  Assumpsit  will  not  lie  to  recover  money  promised  for  doing  that 
vi'hich  it  was  the  party's  duty  to  do  without  reward;  for  it  is  extortion  and  il- 
legal.    2  Bur.  924.     2  Bl.  R.  204. 

"  5.  Wherever  the  consideration  of  the  assumpsit  arises  from  a  fraudu- 
lent transaction,  this  action  wiW  not  We."  Doug.  438.  3  T.  R.  551.  4  E. 
372. 

"6.  So  this  action  being  an  equitable  one,  cannot  be  supported  where 
the  assumpsit  arises  from  an  unconscientious  demand."     Cow.  116,  793. 

"7.  And  so  likewise  if  the  consideration  is  a.  frivolous  or  grouiidless  one, 
or  if  there  is  no  consideration  at  all,  this  action  will  not  lie,  for  ex  nudopac- 
to  non  oritur  actio.  Upon  this  ground,  a  promise  of  any  thing  for  a  service 
already  performed,  without  view  to  reward,  is  void.  Though  where  the  ser- 
vice has  been  done  at  the  requestor  another,  it  shall  be  good  to  support  this 
action.  And  a  promise  to  a  servant  in  consideration  of  past  services  has 
been  held  to  be  good.  And  for  the  same  reason  promises  to  pay  merely  in 
consideration  of  unspecified  forbearance  are  void,  and  will  not  uphold  this 
action.  For  the  forbearance  might  be  but  an  hour,  which  would  be  a  for- 
bearance, and  yet  would  be  an  inadequate  and  frivolous  consideration." 

"But  where  a  party  is  under  a  moral  obligation  to  do  any  thing,  a  pro- 
mise made  of  payment,  or  of  a  reward  for  doing  it,  shall  not  be  deemed 
nudum  pactum,  though  no  other  immediate  consideration  appears."  As  a 
father's  promise  to  pay  for  the  support  of  a  bastard  child. 

But  though  a  moral  obligation  is  a  good  consideration  for  an  express  pro- 
mise, the  courts  have  never  gone  so  far  as  to  raise  an  implied  promise  from 
it.  2  E.  505.  Had  they  done  so,  it  would  have  at  once  ceased  to  be  a 
mere  moral  obligation. 

The  moral  obligation  to  pay  just  debts,  though  barred  by  the  act  of  limi- 
tations or  the  statutes  of  bankruptcy,  has  been  often  decided  to  be  a  suffi- 
cient consideration  for  an  express  promise  to  pay  them. 

"  8.  Assumpsit  will  not  lie  where  the  debt  for  which  the  action  is  broftght 
is  due  by  specially ;  for  the  specialty  ought  to  be  declared  on:  therefore  it 
is  necessary  always  in  the  declaration  to  set  out  for  what  cause  the  debt  be- 
came due,  or  it  will  be  a  sufficient  reason  to  arrest  the  iudp-ment."  2  Strange, 
1207.     Cro.  Ja.  206,  213. 

Here,  however,  we   must  be  careful  to  distinguish  between  cases  where 
the  simple  contract  is  merged  or  extinguished  by  a  subsequent  specialty, 
VOL.  2—18 


138  ASSUMPSIT.  [  BOOK  3. 

and  where  it  is  merely  recognized  by  it  as  an  existing  debt,  and  a  mode  is 
only  prescribed  for  ascertaining  and  liquidating  its  amount.  7  Cranch, 
299.  As  where  there  is  a  parol  agreement  to  build  an  house,  a  subsequent 
covenant,  that  it  shall  be  measured  by  A  &  B,  and  the  value  of  the  work 
thus  ascertained,  does  not  extinguish  it.  So  where  a  preceding  sealed  agree- 
ment is  only  inducement  to  a  subsequent  parol  contract,  an  action  of  as- 
sumpsit will  lie  ;  1  Wash.  170;  as  where  other  terms  or  considerations  are 
introduced  into  the  parol  contract. 

So  though  the  demand  may  have  arisen  under  a  deed,  but  the  party's 
remedy  is  not  by  the  deed,  assumpsit  lies.  As  for  a  security  who  has  paid 
off  a  bond  debt  for  his  principal,  without  having  any  bond  of  indemnity. 
Where  such  bond  is  given,  however,  it  merges  and  extinguishes  the  simple 
contract,  and  assumpsit  will  not  lie.     2  T.  R.  100. 

So  where  parties  covenanted  to  account.  They  did  account,  and  one 
promised  to  pay  the  other  the  balance  which  appeared  against  him.  It 
was  decided  that  this  was  a  new  contract,  and  that  assumpsit  was  a  proper 
action.     2T.  R.  483. 

"9.  Assumpsit  will  not  lie  where  the  agreement  in  which  it  is  founded 
has  been  obtained  by  coercion,  or  is  a  fraud  on  others."  2  T.  R.  763.  4 
T.  R.  16G.     SeeGT.  R.  240. 

"  10.  Assumpsit  will  not  lie  to  recover  money  which  a  party  has  paid 
volunlarily ,  or  in  consequence  of  an  action  brought,  though  the  demand  was 
unlawful,  and  paid  Avith  a  reservation  of  the  party's  right :  as  the  party 
should  have  resisted  the  payment:  for  to  allow  this  would  be  to  multiply 
actions.     1  Esp.  Ca.  279.     2  E.  4G9.    5  Taun.  114.    4  Barn.  &Cres.  272. 

"  11.  These  are  cases  in  which,  on  account  of  the  consideration  on 
which  the  action  is  founded  being  bad,  or  insufficient,  the  plaintiff  cannot 
recover;  but  in  those  cases,  if  the  party  has  paid  the  money,  on  such  con- 
sideration, he  shall  not  he  allowed  to  recover  it  back."  Cow.  790.  1  E. 
96.     7E.  449.     3Bos.  &Pul.  35. 

So  if  a  person  pays  a  debt  barred  by  the  act  of  limitations  or  of  bankrupt- 
cy, or  contracted  during  infancy,  and  not  for  necessaries,  he  cannot  recover 
it  back.  2  Bur.  1012.  Money  lost  at  play  may  by  our  act  be  recovered 
back. 

"  12.  Though  the  person  who  has  received  any  money  from  another,  may 
not  be  legally  entitled  to  keep  it,  yet  if  it  depends  on  a  question  of  right 
which  cannot  be  fairly  and  completely  tried  in  this  form  of  action,  but  may  in 
another,  assumpsit  cannot  be  mantained  for  it."     Cow.  414,  819. 

"The  action  for  money  had  and  received  will  not  lie  to  recover  stock  in 
any  of  the  public  funds  :  for  stock  is  not  money,  and  the  remedy  should  be 
by  bill  in  chancery."  5  Bur,  2509.  Nor  will  it  lie  for  tobacco.  See  2 
Mun.  344. 

By  the  act  1  R.  C.  ch.  101,  §  1,  it  is  provided  tliat,  1.  "  No  executor  shall 
be  charged  on  any  promise  to  answer  any  debt  or  damage  out  of  his  own 
estate  :  2.  No  person  shall  be  charged  to  answer  for  the  debt  or  default  of 
another  person  :  3.  Nor  any  one  be  charged  on  any  agreement  in  consid- 
eration of  marriage  :  4.  Nor  upon  any  agreement  for  the  sale  of  lands,  tene- 
ments, or  hereditaments  :  5.  Nor  upon  any  agreement  whatever  which  is 
not  to  be  carried  into  execution  within  a  year  liorn  the  making  thereof,  un- 
less there  be  a  memorandum  of  the  promise,  or  agreement,  or  undertaking, 
signed  by  the  parties  or  their  agents  properly  authorized." 

This  act  is  very  similar  to  the  British  statute,  upon  which  many  cases 
have  been  decided. 

1.  As  to  executors.  It  is  said  the  promise  of  a  person  made  to  answer 
damages  out  of  his  own  estate,  is  not  within  the  statute,  where  such  person 
is  neither  executor  nor  administrator,  though  lie  becomes  administrator  af- 


CHAP.  9]  ASSUMPSIT.  139 

terwards.  Amb.  330.  In  England  it  seems  to  have  been  otherwise  as  to 
executors,  because  they  are  invested  with  that  character  by  the  will,  and  not 
by  the  letters  testamentary.  Rob.  on  Fr.  201.  In  Virginia,  until  probate, 
the  executor,  as  we  have  seen,  is  without  power.  What  difference  this 
may  make  in  the  matter  has  not  been  decided. 

But  though  the  promise  of  a  person  not  yet  administrator,  and  who  af- 
terwards becomes  so,  is  not  within  this  clause  of  the  statute,  there  must  be 
some  suflicient  consideration  to  support  it,  or  it  will  be  void,  for  it  is  a  col- 
lateral promise.  I  do  not,  indeed,  perceive  why  it  should  not  be  consider- 
ed as  coming  under  the  next  clause  of  the  statute,  and  therefore  void  unless 
in  writing ;  tor  it  is  unquestionably  a  collateral  undertaking  to  pay  the  debt 
of  another. 

Though  the  agreement  be  in  writing,  the  executor  or  administrator  can- 
not be  charged  unless  there  was  a  sufficient  consideration  for  the  promise  : 
as  his  having  assets  ;  or  his  agreeing  to  pay  in  consideration  of  forbearance 
to  sue.  7  T.  R.  350.  2  Call,  258.  See  "3  Mun.  59.  For  the  possible 
loss  which  the  creditor  may  sustain  by  forbearance  is  a  sufficient  consider- 
ation to  support  the  promise.  It  is  therefore  no  answer  to  an  action  on  a 
promise  made  on  such  consideration,  that  the  executor  has  no  assets.  2 
Lev.  3.  For  perhaps  they  have  been  swept  ofT  by  other  claims  which  gain- 
ed a  preference  by  this  very  forbearance.  So  a  promissory  note  by  which 
the  makers,  as  executors,  promise  to  pay  on  demand  with  interest,  renders 
them  personally  liable,  it  is  said.  2  Brod.  &  Bing.  460.  6  Eng.  Ca.  201. 
For  such  a  note  carries  with  it  conclusive  evidence  of  forbearance.  But 
when  they  have  paid  it,  it  is  a  fair  charge  against  the  estate. 

It  must  be  observed,  however,  that  even  without  a  writing  an  executor 
seems  to  be  liable  where  he  promises,  in  consideration  of  forbearance,  to 
pay  the  debt  of  his  testator.     See  3  Mun.  59.     For  this  is  a  new  contract. 

2.  As  to  promises  to  answer  the  debt  of  another,  the  Virginia  law  agrees 
exactly  with  the  British  statute,  under  which  it  has  been  decided, 

1.  "That  if  the  defendant  comes  only  in  aid  of  another  who  obtains  the 
goods,  so  that  there  is  a  remedy  against  both,  according  to  their  distinct 
engagements,  that  is  a  collateral  undertaking,  and  void  without  a  note  in 
writing ;  but  where  the  whole  credit  is  given  to  the  defendant,  so  that  the 
other  is  but  as  his  servant,  and  there  is  no  remedy  against  ^im,  that  is  not  a 
collateral  but  an  original  undertakings ;  in  which  case  a  note  in  writing  is 
not  necessary."  3  Bur.  1886.  2  E.  325.  2H.  &M.  611.  2  T.  R.  80. 
1  H.  B.  120.  8  John.  29.  4  Starkie,  595.  If  the  person  for  whose  use 
the  goods  are  purchased  is  liable  at  all,  the  promise  must  be  in  writing  or  it 
will  be  void.     2  T.  R.  80.     2  H.  &  M.  603. 

2.  "But  wherever  the  person  undeiiaking  is  jointly  interested  with  oth- 
ers, though  they  receive  the  benefit  of  his  undertaking,  no  note  in  writing 
is  there  necessary ;  for  the  undertaking  should  be  solely  for  the  debt  of 
another,  which  here  is  not  the  case.     5  Mod.  213. 

3.  "So  it  should  seem  that  a.  debt  should  be  absolutely  due  to,  or  a  demand 
exist  by  the  person  to  whom  the  undertaking  is  made,  to  make  a  note  in 
writing  necessary.  For  if  the  third  person  for  whose  benefit  the  underta- 
king was  given,  was  never  himself  liable,  the  undertaking  shall  be  deemed 
an  original  one  in  the  party  who  makes  it,  and  no  note  in  writing  is  neces- 
sary." 

As  where  in  consideration  that  A  would  withdraw  his  action  of  assault 
and  battery  against  B,  a  third  person  agreed  to  pay  for  B  £50.  This  was 
not  the  debt  of  another,  and  not  within  the  statute.  1  Wiis. -305.  This  case, 
however,  seems  to  be  in  conflict  with  late  decisions.  2  Bar.  &  Aid.  613. 
4  Starkie,  597. 


140  ASSUMPSIT.  [book  3. 

A  collateral  promise  to  pay  the  debt  of  another,  though  in  writing,  must 
be  supported  by  a  sufficient  consideration  ;  for  it  was  required  belbrc  the 
statute,  upon  common  law  principles,  and  the  statute  so  far  from  dispensing 
with  it,  and  making  the  promiser  farther  liable  than  before,  was  enacted 
for  his  protection,  and  to  exempt  him  from  liability.  See  2  H.  &  M.611. 
But  where  the  promise  constitutes  an  essential  ground  of  the  credit,  and 
was  made  at  the  time  of  the  ci)iitract,  that  will  of  itself  be  a  sufficient  con- 
sideration.    8  John.  29,  37,  40. 

In  like  manner,  any  damage  or  suspension  or  forbearance  of  my  right,  or 
any  possibility  of  loss  occasioned  to  me  by  the  promise  of  another,  is  a 
sufficient  consideration  for  such  promise,  and  will  make  it  binding  ;  though 
no  actual  benefit  accrues  to  the  party  undertaking.  '3  Bur.  1G73.  3  T.  K. 
24.  2  H.  B.  312.  1  Saun.  211,  b.  "  2  Saun.  136,  cited  6  Ran.  90.  For  it 
is  in  elTect  a  new  contract.     In  such  case  no  writing  is  necessary. 

Whether  the  consideration  of  the  promise  is  required  by  a  fair  interpre- 
tation of  the  statute  to  be  inserted  in  the  memorandum  required  by  it,  is  a 
matter  which  has  been  much  disputed.  It  was  decided  in  England,  in  the 
case  of  Wain  vs.  Walters,  (5  East.  10,)  to  be  necessary.  And  though  that 
decision  is  questioned  by  Lord  Eldon,  (14  Vez.  190.  15  Vez.  287,)  it  was 
sanctioned  by  the  whole  court  of  King's  Bench  in  Saunders  vs.  Wakefield. 
4  Barn.  &  Aid.  595.     6  Eng.  Ca.  531.     See,  also,  6  E.  307. 

In  5  Cranch,  151,  152,  Judge  Marshall  expresses  a  contrary  opinion, 
founded  on  a  difference  between  the  language  of  our  act,  and  that  of  the 
British  statute.  That  requires  the  agreement  to  be  in  writing,  and  thus  em- 
braces the  promise  on  one  side,  and  the  consideration  for  it  on  the  other. 
Our  act  is  satisfied  if  the  promise  be  in  writing.  See,  also,  17  Mass.  Rep. 
122.     Rob.  on  Fr.  117,  207. 

"  The  third  case  under  the  statute  requning  a  note  in  writing  is,  that  of 
agreements  in  consideration  of  marriage.  As  to  which,  it  has  been  settled 
that  promises  to  marry  are  not  within  the  statute.  For  the  statute  relates 
only  to  promises  or  contracts  in  consideration  of  marriage,  as  to  pay  mo- 
ney, make  a  settlement,  &.c.      1  Str.  84. 

A  parol  promise  by  a  father  to  the  intended  husband  of  his  daughter, 
made  before  marriage,  is  a  sufficient  consideration  to  sustain  a  written  a- 
greement  made  after  marriage,  if  it  be  in  other  respects  sufficient  under  this 
statute.     3  Hen.  &  Mun.  144. 

"  4.  The  fourth  case  under  the  statute  requiring  a  note  in  writing  is, 
that  of  agreements  for  the  sale  of  lands  or  any  interest  in  the7n."  Cases  un- 
der this  head  fall  more  properly  under  the  jurisdiction  of  the  court  of  chan- 
cery.    They  will  not,  therefore,  be  taken  up  here. 

"  5.  The  fifth  case  in  which  a  note  in  writing  is  required  is,  that  of  agree- 
ments not  to  be  performed  within  a  year."  This  subject  has  been  treated  of 
elsewhere. 

The  policy  of  this  statute  is  approved  by  the  courts,  and  its  provisions  are 
considered  wise  and  salutary,  (i  Ran.  509.  It  is  perhaps  much  to  be  re- 
gretted, that  they  have  been  refined  away  in  a  great  measure  by  the  dis- 
tinction between  direct  and  collateral  undertakings,  where  the  benefit  of  the 
transaction  is  for  a  third  person.  Experience,  I  think,  has  proved,  that  by 
this  construction  perjuries  have  been  multiplied,  instead  of  being  diminished. 

In  the  recent  decision  from  G  Randolph,  just  cited,  the  student  will  find 
some  notice  ol"  the  distinctions  between  those  undertakings  which  are  di- 
rect, and  such  as  are  collateral,  and  therefi)re  within  the  .'-tatute.  He  will 
there  find,  also,  that  the  entries  on  the  book  of  the  merchant  shewing  to 
whom  tlie  goods  delivered  are  charged,  though  not  evidence  for  himself, 
may  nevertheless  be  resorted  to  by  the  defendant  to  prove  that  his  underta- 
king was  merely  collateral,  and  therefore  void  for  want  of  a  promise  in  writing. 


CHAP.  9.]  ASSUMPSIT.  141 

As  to  what  shall  be  a  sufficient  signintr  within  the  statute,  it  has  been  de- 
cided (very  absurdly,  I  think,)  that  signing  as  a  witness  is  suflicient.  1 
Vez.  6,  7. 

"  Of  assumpsit  with  rcftrence  to  the  person.  Of  persons  in  general.  It 
is  a  general  rule,  that  no  person  can  maintain  this  action  on  an  agreement 
to  which  he  is  not  a  party  ;  for  in  such  case  there  can  be  no  contract,  ex- 
press or  implied."     1  Str.  5d-2. 

"However,  where  the  consideration  is  a  provision  for,  or  to  inure  to  the 
advantage  of  a  child,  this  rule  has  admitted  of  exceptions."  See  1  Vent. 
318,  332.  Thus  if  a  son  agrees  (for  valuable  consideration)  with  his  father 
to  pay  his  sister  ^1000,  she  may  maintain  assumpsit.  2  Lev.  216.  Cow. 
443.    Doug.  142.     7  John.  C.  R.  63. 

"  Upon  the  ground  above  mentioned,  it  has  been  said,  that  in  assumpsit 
upon  promises,  general  declarations  are  not  sufficient ;  they  should  be  made 
io  thi  person  ivho  brings  the  action."  As  a  general  promise  of  iSiOOO  to 
whoever  should  marry  a  daughter,  will  give  no  right  of  action  to  the  person 
who  does  marry  her.  Yet,  surely,  if  I  advertise  a  slave  and  offer  a  reward 
of  £10  to  any  person  who  will  take  him  up,  this  would  be  a  good  promise 
on  which  to  ground  an  action  for  the  ten  pounds  on  the  part  of  the  person 
who  may  perform  the  service. 

"  In  the  case  of  factors.  If  a  factor  sells  the  goods  of  a  person  beyond 
sea,  he  may  maintain  an  action  in  his  own  name  for  the  price  ;  for  the  pro- 
mise shall  be  presumed  to  be  made  to  him  :  and  so,  if  he  buys  goods,  the 
seller  may  have  an  action  against  him,  for  the  credit  shall  be  presumed  to 
be  given  to  him  :  and  particularly  because  it  is  for  the  benefit  of  trade." 

But  where  the  owner  of  the  goods  interposes  and  gives  notice  to  the  buy- 
er lo  pay  him,  and  not  the  factor,  the  buyer  is  not  justified  in  paying  the 
factor;  2  Str.  1182;  unless,  indeed,  where  the  owner  is  in  arrears  to  the 
factor,  or  the  factor  is  bound  for  him  :  see  Cow.  251.  2  E.  227 :  for  a  fac- 
tor has  a  lien  upon  goods  consigned  to  him  for  his  own  demands.  Yet  a 
consignee  or  factor  cannot  pawn  the  goods  for  his  own  benefit,  so  as  to  di- 
vest the  property  of  the  consignors.  4  H.  &  M.  432.  5  Ran.  366.  He 
can  only  sell  them  out  and  out  in  the  way  of  his  business.  7  John.  C.  275. 
5John.  C.  429.     5  Vez.  211.     3  Barn.  &  Cres.  342. 

Factors  and  agents  are  answerable  for  breach  or  disobedience  of  orders. 
If  they  disregard  them,  they  may  be  considered  as  disposing  of  the  proper- 
ty on  their  own  account,  and  are  responsible  for  all  losses.  See  1  John. 
Ca.  437.     4  John.  Rep.  103. 

A  factor  or  consignee  who  neglected  during  five  years'  litigation  to  ren- 
der an  account  of  the  outstanding  debts  for  goods  sold,  is  chargeable  with 
the  amount.     2  Call,  415. 

"  Every  factor  ought  xo  sell  for  ready  money,  unless  the  usage  of  trade 
is  otherwise  ;  and  if  he  sell  upon  trust,  without  usage  to  warrant  him,  he  alone 
is  chargeable  in  case  of  a  loss ;  but  if  the  usage  be  to  give  credit,  then,  in 
case  he  sells  to  a  person  in  good  credit,  if  such  person  fails,  the  factor  is 
discharged."     2  Call,  358. 

"The  next  is  the  case  of  agents  or  receivers,"  of  whom  I  have  treated  at 
large  heretofore. 

"  The  next  is  the  case  of  masters  and  owners  of  ships.  These  are  liable 
to  this  action.  1,  For  general  charges  against  the  ship.  2.  For  repairs. 
3.  For  seamen's  wages." 

"1.  As  to  general  charges  againt  the  ship.  The  master  of  a  ship  may 
bind  his  owners  to  any  contract  which  is  for  the  benefit  of  the  ship,"  evea 
beyond  the  value  of  the  ship.     I  T.  R.  73. 

"  And  for  such  general  charges  against  the  ship,  the  owners  are  specifi- 
cally liable."     2  Str.  1251. 


142  ASSUMPSIT.  [book  3. 

'•'  2.  As  to  repairs  done  to  the  ship.  1.  If  they  are  done  at  home,  there  is 
no  hoii  on  the  ship  itself,  but  the  owners  must  be  ])ersonally  sued  ;  but  if 
the  repairs  are  done  abroad,  by  the  maritime  law  the  master  may  hypothe- 
cate the  ship's  bottom."     2  P.  Wms.  367. 

"  2.  The  person  who  repairs  a  ship  has  his  election  either  to  sue  the 
master  who  employs  him,  or  the  owners  ;  but  if  he  undertakes  it  on  a  spe- 
cial promise  from  either,  the  other  is  discharged."     2  Str.  816. 

"But  where  no  such  agreement  appears,  both  are  subject;  and  no  pri- 
vate agreement  between  the  master  and  owners  shall  deprive  a  person  who 
has  a  charge  against  the  ship  for  repairs,  from  suing  either  party."  Cow, 
636.    7  T.  R.  302. 

"  The  owners,  therefore,  are  generally  liable;  but  the  master  only  on  his 
contract,  and  no  further."     Cow.  639.      I  T.  R.  108. 

"  3.  In  the  case  of  seamen's  wages.  1.  Freight  is  the  mother  of  wages  ; 
therefore,  in  case  of  the  loss  of  the  ship,  no  wages  are  recoverable  ;  that  is, 
the  whole  voyage  to  a  delivering  port  must  be  performed,  or  the  sailors 
ehall  not  be  entitled  to  any  wages,  for  the  ship  is  only  entitled  to  freight  on 
delivery  of  the  cargo."     3  Bur.  1844. 

It  is  a  general  principle  that  freight  is  not  due  till  the  delivery  of  the 
cargo,  unless  the  delivery  is  prevented  by  the  shipper  or  his  agents.  If  it 
is  impossible  to  deliver  the  cargo,  from  causes  not  arising  from  the  fault  of 
either  party,  the  shipper  will  be  excused.     4  Rand.  504. 

But  where  the  ship  was  detained  in  a  foreign  port,  and  the  seamen  im- 
prisoned, and  she  was  afterwards  released  and  completed  her  voyage,  the 
seamen  recovered  wages  during  the  detention.  4  E.  546.  So  if  a  seaman 
is  disabled  by  an  accident  in  the  course  of  his  duty.  2  H.  B.  606.  If  he 
is  impressed  by  a  foreign  power,  it  is  a  personal  injury  for  which  the  mas- 
ter and  owners  are  not  responsible,  and  he  recovers  no  wages.  1  Pet.  132. 
If  he  dies  before  the  completion  of  the  voyage,  (being  employed  by  the 
month,)  his  representatives  will  be  entitled  to  his  wages  ;  but  not  if  em- 
ployed by  the  voyage,  it  seems.     6  T.  R.  320. 

"  And,  on  the  ground  above  mentioned,  where  no  freight  is  earning  by 
the  ship,  the  mariners  have  no  title  to  wages."  As  where  she  is  lading  or 
unlading;  unless  there  is  a  special  agreement  to  the  contrary.      I  Sir.  405. 

By  the  laws  of  the  United  States,  seamen  are  entitled  to  one-third  of 
their  wages  at  every  deliveiing  port,  unless  the  contrary  is  stipulated,  and 
the  residue  at  the  last  port  of  delivery.     2  L.  U.  S.  ed.  1815,  p.  117. 

An  agreement  by  a  sailor  to  receive  no  wages  unless  the  ship  return 
home  and  deliver  her  cargo,  is  nudum  pactum,  and  void.     1  Pet.  186. 

A  mariner  forfeits  his  wages  by  embezzlement  of  any  part  of  the  cargo. 
2  Cranch,  210. 

So  he  does  by  <iuitting  the  ship  (upon  her  being  captured)  without  assent 
of  his  employers,  and  not  having  been  forced  to  do  so  by  the  captors.  3 
Call,  228. 

"  2.  And  the  case  is  the  same  of  letters  of  marque  or  privateers :  for  the 
voyage  or  cruise  must  be  performed,  or  no  wages  are  due  to  the  mariners  : 
neither  shall  it  give  the  ofiicer  or  mariners  any  claim,  that  they  were  absent 
from  the  ship  by  the  owner's  direction,  when  she  was  lost;  for  they  must 
still  be  considered  as  belonging  to  the  ship."     Doug.  520. 

Another  class  of  contracts  for  which  assu?npsit  is  the  proper  action,  are 
those  made  by  servants.  But  of  these  enough  has  been  said  in  Book  I, 
quod  vide. 

"The  next  case  I  shall  consider  is  that  of  partners.  1.  To  make  a  per- 
son liable  as  a  partner,  there  must  be  an  agreement  between  him  and  the 
ostensible  person  to  share  in  all  risks  of  profit  or  loss,  or  he  must  have  per- 


C\IAP.  9.]  ASSUMPSIT.  14S 

mitted  the  other  to  use  his  credit,  and  to  hold  him  out  as  jointly  liable  with 
himself." 

"  2.  It  is  essential,  therefore,  to  make  a  person  subject  as  a  partner,  that 
he  is  interested  in  the  profits  ;  that  is,  that  the  advantage  he  derives  from  the 
trade  is  casual,  as  depending  on  these  profits;  for  if  it  is  certain  and  defin- 
ed, he  is  not  a  partner."     2  Bl.  Rep.  1)98. 

"3.  Where  there  is  a  partnership  demand,  all  the  partners  should  join  in 
the  action,  for  the  contract  and  undertaking  is  joint ;  and  if,  in  such  case, 
one  partner  only  brings  the  action,  the  defendant  may  take  advantage  of  it 
at  the  trial,  and  nonsuit  the  plaintiff,  for  the  contract  is  not  the  same  ;  but 
in  the  case  of  a  tort  this  must  be  pleaded  in  abatement."  2  Str.  820.  2 
T.  R.  282. 

Under  an  old  act,  (1755,  ch.  2,  §  7,)  it  was  necessary  in  suits  for  goods 
sold  by  a  factor  in  Virginia,  for  merchants  in  Great  Britain,  to  state  the 
name  of  the  factor  in  the  declaration.  2  Call,  16.  This  provision  forms 
no  longer  any  part  of  our  code. 

"  But  where  one  partner  dies,  the  other  should  bring  this  action  alone  : 
for  the  executor  and  survivor  cannot  join,  since  the  remedy  survives,  though 
not  the  sum  recovered  ;  and,  therefore,  on  recovery,  the  survivor  is  liable 
to  the  executor  for  part."     Salk.  444.     2  T.  R.  476. 

"  All  contracts  with  partners  are  joint  and  several,  and  every  partner  is 
liable  to  pay  the  whole  ;  and  in  what  proportions  the  others  are  to  contri- 
bute is  a  matter  merely  among  themselves ;  the  plaintiff  may,  however, 
bring  his  action  against  one,  but  he  may  compel,  by  a  plea  in  abatement, 
the  plaintiff  to  join  them  all  :  but  if  one  partner  is  out  of  the  kingdom,  and 
not  amenable  to  the  process  of  the  court,  the  plaintiff  may  proceed  singly 
against  the  other."      1  Wils.  78.      1  Wash,  9. 

On  the  subject  of  partners,  consult  Watson  and  Gow  on  partnership. 

The  next  class  of  cases  in  which  assumpsit  lies,  is  that  of  executors  ;  and 
it  lies  against  them  on  a  promise  made  by  the  testator,  and  for  them  on  a 
promise  made  to  him.  So  one  may  as  executor  sue  upon  a  promise  made 
to  him  as  such,  in  relation  to  and  for  the  benefit  of  the  estate.  Toll.  437. 
6  E.  405.  And  in  all  these  cases  it  is  immaterial  whether  the  promise  be 
express  or  implied. 

Formerly,  where  the  executor  euefl  as  on  a  promise  made  to  himself,  he 
was  personally  liable  to  costs  if  he  failed  ;  1  Wash.  139.  2  H.  &  M.  361  ; 
though  if  the  promise  was  alleged  to  have  been  made  to  the  testator,  and 
the  executor  failed,  he  was  not  liable  to  costs,  because  he  was  not  presumed 
to  have  been  conusant  of  his  acts.  5  T.  R.  234.  1  Chitty,  203.  But 
now  by  statute  an  executor  plaintiff  is  not  personally  liable  for  costs,  unless 
the  court  shall  be  of  opinion,  that,  in  the  prudent  discharge  of  his  official 
duty,  he  ought  not  to  have  brought  the  action  :  and  even  then  the  costs  are 
to  be  made  of  the  testator's  goods,  if  to  be  had,  and  only  of  his  own  goods 
in  case  there  are  no  goods  of  the  testator.  See  1  R.  C.  ch.  128,  §  25. 
Sess.  Acts,  18-2-2,  ch.  28,  §  4. 

The  questions  arising  out  of  contracts  made  by  a.  fane  covert  hdt.ve  alrea- 
dy been  examined. 

"  The  pleadings  and  evidence.  1.  Of  the  pleadings  on  the  part  of  the 
plaintiff." 

The  declaration  in  assumpsit  is  either  upon  an  express  or  an  implied 
contract.  And  in  the  same  declaration  may  be  joined  several  counts,  some 
of  which  may  be  founded  upon  a  special  or  express  agreement,  and  others 
merely  upon  the  agreement  which  is  implied  by  law  from  the  transaction 
between  the  parties.  That  upon  the  express  agreement  is  called  the  spe- 
cial count  and  the  others  are  called  the  general  counts. 


144  ASSUMPSIT.  [book  5. 

In  reference  to  the  action  of  assumpsit  where  there  is  an  express  contract, 
we  shall  observe : 

1.  "  Where  tliere  is  a  special  contract  or  agreement,  the  plaintiff  ought  to 
declare  on  it,  lor  the  defendant  ought  to  have  notice  that  he  is  sued  on  it ; 
and  the  plaintiff  should  not  be  allowed  to  go  into  evidence  of  any  special 
agreement  on  a  general  count  in  indebitatus  assumpsit,  by  which  the  defen- 
dant might  be  taken  by  surprise,  unless  he  had  notice  from  the  plaintiff 
that  he  meant  to  rely  on  the  general  as  well  as  special  ground."  1  T.  R. 
134.     See  5  Barn.  &  Aid.  2-28.     4  Barn.  &  Cres.  163. 

In  consonance  with  this  principle,  the  court  of  appeals,  I  think,  appear  to 
incline  against  a  general  indebitatus  assumpsit  by  the  endorsee  of  a  bill  of 
exchange  against  the  endorser.  See  1  Call,  239.  In  such  case  a  special 
count  is  necessary. 

2.  "  Where  the  assumpsit  is  founded  on  an  agreement  in  which  something 
is  previously  to  be  performed  by  the  plaintiff ,  on  condition  of  which  the  de- 
fendant undertakes  to  pay :  it  is  necessary  for  the  plaintiff  in  his  declara- 
tion to  aver  either  a  general  pcrfortnance  of  his  part,  or  that  he  is  ready  to 
do  it,  and  also  a  notice  and  request  to  the  defendant."  6  E.  555.  2  Bur. 
699.    7  T.  R.  125. 

Where  one  man  agrees  to  do  a  certain  act  in  consideration  of  another 
man's  doing  another  act,  and  both  acts  are  appointed  to  be  done  at  the 
same  time  and  place,  it  is  sufficient  for  the  plaintiff  to  aver  that  he  was 
ready  at  the  time  and  place  to  perform  the  agreement.  1  E.  203.  3  Mun. 
166.  This  subject  is  treated  at  large  in  the  action  of  covenant,  the  princi- 
ples of  which,  as  to  this  matter,  are  applicable  also  to  this  action. 

"And  therefore  notice  and  request  to  the  defendant  should  be  averred.  For 
there  can  be  no  default  in  the  defendant  till  he  has  had  notice  of  the  per- 
formance of  the  plaintiff's  part."     1  Str.  89.     Hob.  31,  68. 

The  whole  amount  of  the  cases  here  cited  is  said  to  be,  that  they  estab- 
lish a  difference  as  to  the  necessity  of  notice  between  those  agreements 
where  the  party  cannot  perform  the  thing  without  receiving  notice  from  the 
person  to  whom  it  is  to  be  performed,  and  those  where  it  is  in  his  power  to 
perform  it  without  such  notice,  3  Call,  205.  In  the  first  case  a  special 
notice  and  demand  is  necessary,  because  without  it  the  defendant  cannot 
know  whether  he  is  bound,  and  to  wlmf.  In  the  .second  r.nse  ho  is  undei 
no  such  embarrassment. 

"So  that  the  rule  seems  to  be,  that  where  the  defendant  is  chargeable] 
on  a  collateral  matter,  and  not  on  a  mere  debt,  there  ought  to  be  a  reques 
precisely  alleged  in  point  of  time,  place,  &c.     As  if  I  promise  to  deliver  ii 
a  certain  mill  a  quantity  of  wheat,  no  time  being  specified  for  delivery, 
must  aver  notice  of  delivery  and   request  specially,  and  moreover  I  mus 
prove  it  to  entitle  myself  to  my  action.     For  the  defendant  is  not  in  faulty 
unless  informed  of  the  delivery.     But  where  the  assumpsit  is  for  a  preced- 
ing debt,  which  was  due  before,  then  the  general  allegation  of  licet  sccpius  ^ 
requisitus  is  suflicicnt ;   for  the  bringing  the  action  is  a  request."     Cro.  Ja.J 
183,  523.     I  Saun.  33.     5  T.  R.  469.     Doug.  679. 

"  Therefore,  in  declaring  on  a  note  of  hand,  no  request  is  necessary,  for  ii 
acknowledges  a  debt,  and  the  bringing  the  action  is  a  request."  I  Wils^ 
33.     1  Strange,  88. 

"  But  in  all  cases  where  money  is  to  be  paid  on  an  executory  considera^ 
lion,  the  plaintiff  should  set  out  the  day  when,  and  place  where,  the  con-j 
sideration  was  performed,  because  it  is  traversable,"  as  in  the  case  just  pu^ 
of  the  delivery  of  wheat  in  a  mill  according  to  contract. 

In  assumpsit  in  the  superior  court  of  a  county,  it  is  not  sufficient  caus« 
to  arrest  the  judgment  that  the  declaration  lays  the  venue  in  a  different 


CHAP.  9.]  ASSUMPSIT.  145 

county  from  that  where  the  contract  was  made,  or  omits  to  state  that  the 
cause  of  action  arose  within  the  jurisdiction  of  the  court.     5  Mun.  27. 

"  Where  the  action  is  brought  on  mutual  promises,  they  must  be  both  made 
at  the  same  time,  or  else  it  will  be  nudum  pactum,  and  so  no  action  will  lie  : 
and  when  they  are  to  be  performed  at  the  same  time,  the  plaintiff  in  such 
case  need  not  aver  performance." 

But  in  such  case  he  ought  to  aver  a  readiness  to  perform  ;  7  T.  R.  125. 
1  E.  20-}.     0  E.  555.     3  Mun.  16(3  ;   unless  they  are  independent  promises. 

In  the  case  of  Cook  vs.  Oxley,  (3  T.  R.  653,)  it  was  decided  that  where 
A  sold  tobacco  to  B,  and  gave  him  till  the  next  day  to  determine  if  he 
would  take  it,  and  promised  to  deliver  it  if  B  would  take  it,  and  within  that 
time  give  notice  thereof  to  A,  yet  A  might  within  the  same  time  retract.  It 
was  nudum  pactum,  and  both  parties  should  be  bound,  or  neither.  This 
case  is  cited  and  questioned  by  able  counsel  arguendo.     2  Call,  227. 

Where  the  promises  are  not  only  mutual  but  independent,  an  averment 
of  performance,  or  that  the  party  was  ready,  is  not  necessary.  As  where  a 
carpenter  agrees  to  build  and  finish  a  house  by  the  first  of  November,  for 
j£iOO,  payable  one  half  in  May  thereafter,  and  the  other  half  when  the 
house  was  finished,  he  may  sue  for  the  money  though  he  did  not  finish  the 
house  in  the  time  agreed  on  :  for  the  very  terms  of  the  agreement  show 
that  a  payment  was  contemplated  though  the  house  was  not  completed  in 
time.  2  John.  Rep.  272,  -387.  And  it  would  be  unjust  that  an  immate- 
rial failure  in  the  time  of  performance  should  occasion  a  forfeiture  of  the 
whole  price.  The  law,  therefore,  leaves  the  other  party  to  his  action  for 
damages  for  such  failure. 

3.  "  Where  the  plaintiff's  action  is  to  arise  from  some  precedent  act  to 
be  done  by  himself,  he  should  aver  and  show  his  right  to  do  such  act,  and 
also  his  performance  as  far  as  he  could.  For  otherwise  he  might  recover 
for  a  consideration  which  he  could  not  perform."  Doug.  598.  2  H.  B. 
123.  _ 

"  And,  for  the  same  reason,  if  the  \^h'mt\fC  avers  performance,  he  must  also 
show  how  performed,  that  the  court  may  judge  if  the  performance  is  suffi- 
cient to  entitle  him  to  action.  And  if  the  plaintiff  declares  on  two  const' 
derations,  he  must  aver  the  performance  of  both  ;  for  the  assumpsit  on  the 
part  of  the  defendant  shall  be  presumed  to  be  founded  on  both  considera- 
tions taken  together." 

In  assumpsit  it  is  essential  that  a  promise  should  be  stated  in  the  decla- 
ration. Thus,  even  in  assumpsit  on  a  promissory  note  or  other  writing  for 
the  payment  of  money,  unless  a  promise  is  stated,  the  declaration  is  defec- 
tive, though  the  writing  be  expressly  set  forth  in  hcBC  verba,  importing  a 
promise.  2  Call,  39.  Lord  Ray.  757,  774.  So  a  consideration  must  be 
stated,  and  without  it  the  declaration  will  be  defective.  .3  Mun.  550.  5 
Mun.  23.  In  this  case  the  promise  was  to  return  so  much  corn  ;  and  though 
this  expression  goes  far  to  acknowledge  a  consideration,  yet  it  was  held  in- 
sufficient. 

Where  a  promissory  note  is  declared  on,  the  declaration  ought  to  state 
the  promise  to  have  been  for  value  received,  and  if  on  the  face  of  the  note 
that  is  expressed,  it  will  be  sufficient  evidence  of  consideration,  unless  con- 
tradicted by  testimony  on  the  part  of  the  defendant,  disproving  the  con- 
sideration. 

In  assumpsit  the  promise  to  pay  is  the  gist  of  the  action ;  and,  as  has 
been  already  said,  unless  the  promise  be  set  forth,  it  is  a  fatal  error  in  the 
declaration.  2  Str.  793.  2  Wash.  187.  And  it  ought  to  be  averred  di- 
rectly, and  not  by  way  of  inference.  Ibid.  3  Mun.  566.  In  like  manner,  a 
consideration  for  the  promise  ought  to  be  set  forth  in  the  declaration,  and  if 
VOL.  2—19 


146  ASSUMPSIT.  [book  3. 

it  be  omitted,  it  has  frequently  been  declared  to  be  a  fatal  error.  2  Call,  39. 
3  IVIun.  550.  4  Mun.  95.  5  Mun.  23.  Yet  the  late  act  of  Jeofails  (1  R. 
C.  ch.  1:2S,  §  103,)  provides  "that  no  judgment  after  a  verdict  shall  be  ar- 
rested on  account  of  the  omission  of  the  averment  of  any  matter,  without 
proving  which  the  jury  ought  not  to  have  given  such  verdict,  or  for  any 
other  defect  in  the  declaration  which  niight  have  been  good  cause  of  de- 
murrer, and  was  not  taken  advantage  of  by  demurrer."  How  far  this  act 
cures  the  errors  above  mei:)tioned,  the  courts  must  determine.  The  statute, 
however,  seems  to  have  been  of  little  effect  since  the  decision  which  has 
sanctioned  the  practice  of  demurring  and  pleading  to  tiie  same  declaration. 
For  now,  in  all  cases  of  moment,  the  dei'endant  both  demurs  and  pleads, 
and  thus  takes  advantage  of  those  errors  which  the  statute  intended  to  cure. 

2.  Of  the  general  counts  or  assumpsit  upon  contracts  implied  by  law. 

The  general  counts,  as  they  are  called,  to  contra-distinguish  them  from 
counts  on  special  agreements,  are  indebitatus  assumpsit, — the  count  on  a 
quantum  meruit  for  work  or  services  done,  and  that  on  a  quantum  valebat  for 
goods  sold.  The  count  on  an  insimul  computassent  does  not  fall  strictly 
under  either  denomination. 

The  indebitatus  assumpsit  is  the  most  general  of  any ;  for  it  lies  for 
work  and  labor  done,  for  goods  sold  and  delivered,  for  money  lent  to  the 
defendant,  or  paid  for  him,  or  received  l)y  him  to  plaintiff's  use,  or  appear- 
ing due  on  an  account  stated.  The  difference,  however,  in  effect,  between 
the  indebitatus  assumpsit  for  work  and  labor,  and  the  quantum  meruit,  is  now 
not  very  material,  although  the  former  is  founded  upon  the  supposition  of 
a  sum  due  for  the  service  under  some  previous  determinate  contract,  (now 
complete  and  at  an  end,)  and  the  latter  is  for  such  price  only  as  the  party 
deserved  to  have  for  his  labor.  For  notwithstanding  the  indebitatus  as^ 
sumpsil  supposes  the  sum  to  be  due  by  express  contract,  (no  longer  open 
and  subsisting,)  yet  the  plaintiff  may  recover  under  it  as  much  as  he  deserv- 
ed, where  there  apj^ears  to  have  been  no  contract  price.  Formerly,  how- 
ever, it  was  held  otherwise.     2  Saun.  12i2,  n.  2. 

The  indebitatus  assumpsit  alleges  that  the  defendant  is  indebted  to  the 
plaintiff  in  a  sum  of  money  for  goods  sold,  for  work  done,  lor  money  lent, 
for  money  advanced  at  defendant's  request  to  a  third  person,  for  money 
paid  for  his  use,  for  money  had  and  received  by  him  for  the  use  of  the 
plaintiff,  and  for  money  due  on  an  account  stated.  There  may  be  in  the 
same  declaration  distinct  counts  upon  each  of  these  several  considerations, 
or  there  may  be  one  count  for  all  of  them  ;  since  any  number  of  causes  of 
action  to  which  the  indebitatus  count  is  applicable,  may  be  included  in  the 
same  count  of  indebitatus  assumpsit.  See  4  John.  Rep.  280.  2  Chitty  43, 
in  note.  Having  stated  the  indebtedness  of  the  defendant,  the  declaration 
proceeds  to  allege  that,  being  so  indebted,  the  defendant  in  consideration 
thereof  undertook  and  assumed  to  pay  to  the  plaintifl^  the  said  sum,  when 
requested,  and  then  concludes  with  setting  forth  a  breach  of  the  promise 
and  failure  to  pay. 

The  quantum  meruit  does  not  state  as  the  count  on  indebitatus  assumpsit 
does,  that  the  defendant  was  indebted  lor  goods  sold,  services  performed,  or 
some  other  pre-existing  simple  contract  debt,  but  alleges  that  in  considera- 
tion that  the  plaintiff  had,  at  the  defendant's  request,  done  certain  work, 
&c.,  he,  the  defendant,  promised  to  jjay  what  the  plaintiff  reasonably  de- 
served ti.erefor. 

The  quantum  valebat  count  difiers  in  like  manner  from  the  indebitatus. 
It  is  in  general  confined  to  the  sale  of  goods,  and  states  that  the  defendant 
had  agreed  to  pay  so  much  as  the  goods  were  reasonably  worth.  Both 
these  counts  contain  averments  of  the  demand  of  the  fair  price  of  the  la- 
bor, or  vf  tho  j^oodt. 


CHAP.  9.]  ASSUMPSIT.  147 

But  thouirlij  as  I  have  said,  the  indebitatus  assumpsit  in  these  cases  sup- 
poses a  price  to  have  been  agreed  on,  and  therefore  implies  an  express 
contract;  and  though  where  a  price  has  been  agreed  on,  it  will  lie  after  the 
contract  is  complete  and  at  an  end,  yet  we  must  remember  that  so  long  as 
the  contract  remains  open,  subsisting,  and  in  force,  the  plairititf  cannot  re- 
cover on  this  general  count.  '2  Mun.  345.  7  Cranch,  -HYi.  Doug.  23. 
2E.  147.  Cow.  818.  1  T.  R.  133.  4  E.  14<>.  6  E.  564,  509.  The 
difference,  as  I  have  already  endeavored  to  shew,  is  this:  where  the  con- 
tract is  at  an  end,  (as  where  it  has  been  rescinded,)  the  plaintiff  is  entitled 
to  recover  back  his  whole  money,  and  then  an  indebitatus  assumpsit  will 
lie  ;  but  if  the  contract  be  open,  then  the  plaintiff's  demand  is  not  for  the 
whole  sum,  but  for  damages  arising  out  of  the  breach  of  it,  and  he  must 
consequently  rely  upon  the  special  contract.  1  T.  R.  133.  7  T.  R.  181. 
As  where  A  bought  a  carriage  lor  £10,  and  had  liberty  to  return  it  in  three 
days,  and  did  return  it,  he  maintained  the  action  of  indebitatus  assumpsit 
to  recover  back  the  price  which  he  had  paid.  So  for  work  and  labor  ;  how- 
ever special  the  agreement,  yet  if  the  terms  of  it  have  been  performed  on 
the  plaintiffs  part,  and  the  rumuneration  was  to  be  in  money,  the  common 
indebitatus  count  is  sufficient;  2  Mun.  345  ;  but  if  the  contract  has  not 
been  executed  by  the  plaintiff,  though  the  defendant  prevented  it,  the  de- 
claration must  be  special.     1  Chitty,  339. 

On  the  general  counts  above  mentioned,  it  is  proper  to  observe, 

"  In  declaring  in  assumpsit,  it  is  always  necessary  to  set  out/or  what  the 
debt  became  due,  and  not  generally,  that  the  defendant  being  indebted,  un- 
dertook to  pay,  &c.  For  the  debt  might  be  due  by  specialty,  in  which  case 
this  action  would  not  lie." 

"  But  if  it  sulhcienfly  appears  from  the  declaration  that  the  debt  is  not 
■due  by  specialty,  as  \t"it.'\s  pro  opere  ct  Zaiore  generally,  without  saying  what 
work,  it  is  good." 

"2.  In  declaring  in  indebitatus  assumpsit  for  money  lent  and  advanced, 
it  must  always  be  tor  money  lent  to  the  defendant  himself,"  or  to  his  wife, 
for  that  is  a  loan  to  the  husband.     3  VVils.  388.     2  Wils.  141.     1  Salk.  2-3. 

This  principle  arises  out  of  the  technical  meaning  of  the  word  "  lent," 
and  where  money  is  advanced  to  a  third  person  at  the  request  of  the  defea- 
.dant,  this  word  should  in  strictness  be  omitted  in  the  declaration.  It  may 
perhaps  well  be  doubted  whether  this  technicality  would  now  be  counte- 
nanced. 

In  all  actions  of  indebitatus  assumpsit,  the  plaintiff  must  file  with  his  de- 
claration an  account  sta'ting  distinctly  the  several  items  of  his  claim  against 
the  defendant;  and,  on  failure,  he  can  give  no  evidence  of  any  item  which 
is  not  so  plainly  described  in  the  declaration  as  to  irive  the  defendant  full 
notice  of  the  character  thereof.  I  R.  C.  ch.  128,  §  86.  The  use  of  a  bill 
of  particulars  is  to  prevent  surprise.  As  to  the  necessity  for  such  a  provi- 
sion, see  1  Call,  2-39.  2  Mun.  275,  in  note.  See,  as  to  the  practice  under 
the  English  statute  corresponding  somewhat  with  ours,  Phil.  Ev.  145,  &c. 

An  account  filed  in  indebitatus  assumpsit,  which  gives  notice  of  the  cha- 
racter of  the  claim,  is  sufficient,  though  made  up  of  rarious  items  of  which 
no  specific  notice  is  given  :  4  Ran.  488  :  as  for  merchandise  per  bill  at  such 
a  date.  But  observe,  in  this  case  it  was  proved  that  a  bill  of  particulars 
had  been  delivered  with  the  articles  when  sold. 

"3  The  breach  assigned  in  the  declaration  should  always  follow  the  un- 
dertaking stated,  or  the  plaintift' cannot  have  judo'ment." 

And  the  breach  must  be  clearly  stated.  Where  there  were  several 
counts,  and  the  breach  was  that  the  defendant  had  not  paid  the  amount 
charged  in  the  last  count,  which  count  was  not  proved,  the  plaintiff  could 
not  have  judgment : — not  on  the  first  count,  because  there  was  no  breach, 


148  ASSUMPSIT.  [  BOOK  3. 

nor  on  the  last,  because  not  proved.  5  Mun.  196.  How  far  the  new  sta- 
tute of  Jeofails  would  cure  the  defect  in  the  first  count,  remains  to  be  seen. 

"4.  In  assumpsit,  the  day  of  the  promise  laid  in  the  declaration  is  not 
material."      1  Str.  21.     1  T.  11.  116. 

Except  where  the  day  makes  a  part  of  the  contract,  as  in  the  case  of  a 
promissory  note  ;  for  there,  if  the  date  of  the  note  or  time  of  payment  is 
misrecited,  it  is  fatal,  and  the  plaintilF  cannot  give  the  note  in  evidence. 
So,  where  the  date  of  any  other  written  contract  is  averred,  a  correct  reci- 
tal is  essential.     See  1  Chitty,  258. 

And  though  in  assumpsit  on  inshnul  computassent,  time  and  place  ought 
to  be  laid,  (Lord  Ray.  533,)  yet  neither  seem  material  ;  for  though,  gene- 
rally, in  personal  actions,  the  declaration  should  state  a  time  and  place,  yet 
the  precise  time  is  not  important. 

"5.  In  declaring  under  the  statute  of  frauds,  the  plaintiff  need  not,  in 
his  declaration,  shew  any  note  in  writing  ;  but  it  will  be  sufficient  for  him 
to  produce  it  on  the  trial." 

"  6.  In  assumpsit  against  an  infant,  one  count  in  tlie  declaration  was  an 
account  slated,  and  there  was  a  general  verdict;  judgment  was  arrested: 
for  such  count  is  bad  as  against  an  infant,  who  is  not  presumed  to  be  com- 
petent to  enter  into  an  account."      I  T.  R.  40. 

But  in  Virginia,  where  there  are  several  counts,  and  general  damages 
are  given,  the  verdict  is  good  though  one  count  be  faulty  ;  but  the  defend- 
ant may  apply  to  the  court  to  instruct  the  jury  to  disregard  that  count,  and 
then  if  the  plaintiff  has  no  evidence  to  support  any  other  he  must  be  defeat- 
ed.    See  1  R.  C.  ch.  128,  §  104. 

"7.  In  an  action  by  an  executor,  if  the  action  is  brought  on  a  contract 
made  by  himself  respecting  the  goods  of  the  testator,  he  need  not  name 
himself  executor,  as  where  he  sells  on  credit  goods  of  the  deceased  to  pay 
the  debts  without  taking  bond.  Here  an  assumpsit  is  raised,  and  he  may 
either  sue  as  executor  or  not,  at  his  pleasure." 

"But  the  plaintiff  cannot  join  in  the  same  action  a  demand  due  to  him- 
self in  his  own  right,  and  another  as  executor  or  administrator;  for  the 
costs  to  be  recovered  are  entire,  and  he  can  never  discover  how  much  he  is 
to  have  as  administrator  or  executor,  and  how  much  as  his  own."  1  Wils. 
171.     Salk.  10.     6E.405. 

"  Yet  an  executor  may  join  in  the  same  declaration  several  counts  for 
money  had  and  received  by  the  defendant  to  the  use  of  the  testator,  and  to 
the  use  of  the  executor  as  such."  3  T.  R.  660.  6.  E.  405.  Chitty,  202, 
203,  204. 

In  declaring  against  an  executor,  a  count  cannot  be  introduced  which 
would  charge  him  personally,  for  the  judgment  in  the  one  case  would  be 
de  bonis  propriis,  and  in  the  other  de  bonis  testaloris.  1  Chitty,  205.  In 
2  Lev.  175,  the  rule  laid  down  was,  that  where  money  when  recovered 
Would  be  assets,  the  executor  may  declare  for  it  in  his  representative  cha- 
racter. See,  also,  1  T.  11.  487.  6  E.  405.  Whore  the  promise  in  such 
case  is  made  to  him,  or  raised  to  himself,  but  in  his  character  of  executor, 
the  words  "as  executor"  should  be  inserted.      1  Chitty,  204. 

"  2.  Of  the  evidence  on  the  part  of  the  plaintiff.  1.  As  the  plaintiff  is 
bound  to  declare  on  a  special  agreement,  where  there  is  such,  he  ought  to 
prove  the  contract  stated  in  his  declaration  expressly  as  laid,  or  he  shall  be 
nonsuited." 

"As  where  the  plaintiff  declared  on  an  agreement  by  the  defendant,  to 
deliver  good  merchandiznhle  corn.  Proof  of  an  agreement  to  deliver  good 
corn  of  the  second  sort  was  held  not  to  support  the  declaration."  1  Lord 
Hay.  735.     4  T.  R.  314.     5  E.  107,  111.     8  E.  7. 


CHAP.  9.]  ASSUMPSIT.  149 

"  For  the  agreement  being  the  gist  of  the  action,  must  be  stated  trul)', 
and  the  whole  of  it  ought  to  appear  on  the  record.     1  T.  R.  447. 

There  is  no  principle  more  generally  true  than  this  ;  nor  is  it  impugned 
by  the  decision  that  an  agreement  in  writing  is  good  evidence  in  suj)port 
of  a  declaration  setting  forth  an  oral  contract,  provided  it  be  of  the  same 
purport,  and  not  under  seal.  For,  not  being  sealed,  the  written  and  oral 
contracts  are  of  the  same  nature,  and  that  which  is  in  writing  ought  to  be 
produced,  as  it  is  the  best  evidence,  although  it  is  merely  evidence,  and 
does  not  change  the  nature  of  the  contract.  1  Wash.  199,  20*2.  Indeed 
there  is  no  other  distinction  between  agreements  than  specialty  and  parol. 
7  T.  R.  351. 

It  is  however  sufficient  if  the  substantial  parts  of  the  contract  are  proved 
as  laid,  nor  will  the  court  extend  the  principle  so  as  to  embrace  what  is  im- 
material.    1  Wash.  363. 

"  But  where  an  agreement  is  in  the  alternative,  and  it  is  in  the  option  of 
the  party  bringing  the  action  to  sue  on  either  part  of  it  :  where  he  does  so 
bring  his  action  on  one  part,  he  need  not  state  the  whole  of  the  agreement; 
for  having  made  his  election  as  to  one,  it  then  becomes  absolute,  and  he 
need  only  state  so  much  as  gives  him  a  right  to  sue  ;  but  where  the  optiort 
of  the  alternative  is  in  the  defendant,  it  is  otherwise."  1  T.  R.  448. 
Doug.  15. 

"It  has  been  held,  that  though  the  plaintiff  has  a  count  in  his  declara- 
tion on  a  quantum  meruit,  as  well  as  on  a  special  agreement,  yet  if  at  the 
trial  he  proves  a  special  agreement,  but  different  from  that  laid  in  the  decla- 
ration, the  plaintiff  cannot  recover  on  either  count :  not  on  the  first  count, 
because  of  the  variance;  nor  on  the  second,  because  there  was  a  special 
agreement."      1  Str.  648.     Bull.  N.  P.  139. 

The  doctrine  here  stated  rests  upon  the  sound  principle,  that  where 
there  '  .•  a  special  contract  for  an  agreed  price,  the  plaintiff  cannot  recover 
on  the  quantum  meruit,  because  on  that  count  the  measure  of  damages  is 
the  value  of  the  services,  which,  peradventure,  may  be  more  than  the  price 
agreed  upon.  See  6  T.  R.  325.  Nor  can  he  recover  upon  the  special  agree- 
ment prorerf,  if  it  differs  from  that  laid  in  the  declaration  ;  because  the  de- 
fendant would  be  taken  by  surprise,  if,  when  he  is  charged  with  having 
made  one  contract,  the  plaintiff  should  be  permitted,  without  giving  him  an 
opportunity  to  prepare  for  his  defence,  to  prove  another.  It  is  for  this  rea- 
son, among  others,  that  the  allegata  et  probata  are  always  required  to  cor- 
respond. 

But  where  the  plaintiff  declares  on  a  special  contract,  and  upon  the  trial 
he  fails  altogether  to  prove  any  special  contract  whatever,  and  none  is  pro- 
ved by  the  defendant,  the  plaintiff  may  then  recover  on  the  quantum  meruit ; 
for  where  there  is  no  contract  for  price,  the  party  is  entitled  to  recover  the 
fair  price  of  his  labor.  See  Doug.  628.  7  John.  132.  1  B.  &  P.  (New. 
R.)  354. 

In  Cooke  vs.  Munston,  (1  N.  R.  354,)  Sir  J.  Mansfield  observes,  that  if 
a  plaintiff  sues  a  defendant,  as  having  built  a  house  for  him  according  to 
agreement,  yet  if  he  fail  to  prove  that  he  did  build  it  according  to  agree- 
ment, he  may  still  recover  for  work  and  labor  done.  Yet,  in  3  Taunton, 
52,  it  is  decided,  thai  a  builder  who  deviates  from  the  specifications  of  di- 
mensions and  materials  in  his  contract,  cannot  recover  upon  a  quantmn  me- 
ruit for  the  work  actually  done.  It  seems,  however,  reasonable  that  in 
some  shape  the  workman  should  recover  the  price,  and  that  the  person  for 
whom  he  built  should  recover  damages  for  deviation.  See  Boone  vs.  Eyre, 
1  H.  B.  273.  See,  also,  6  T.  R.  573.  I  Saun.  320,  b.  The  remedy  of 
the  workman  would  be,  I  should  have  conceived,  on  the  special  contract, 
and  the  contract  should  be  considered  mutual  and  independent.     This  has 


150    '  ASSUMPSIT.  [book  3. 

been  explained  in  treating  of  the  action  of  covenant.     See  Norris's  Peake, 
408. 

The  doctrine,  however,  would  seem  not  to  have  been  settled  agreeably 
to  this  opinion.  A  judicious  writer,  in  presenting  the  decisions  on  this 
subject,  remarks,  (4  Starkie,  97,) — 

"  Where  the  plaintiff  proves  a  special  agreement,  and  work  done,  but 
not  pursuant  to  such  agreement,  it  is  said  he  shall  recover  upon  the  quan- 
tum meruit;  for  otherwise  he  would  not  be  able  lo  recover  at  all.  (Bull. 
N.  P.  139.)  As  if  on  a  quantum  meruit  for  work  and  labor,  the  plaintiff 
should  prove  that  he  had  built  a  house  for  the  defendant ;  though  the  de- 
fendant should  prove  that  there  was  a  special  agreement  about  the  building 
of  it,  viz.,  that  it  should  be  built  at  such  a  time  and  in  such  a  manner, 
which  had  not  been  strictly  complied  with,  yet  the  plaintiff  must  recover  on 
a  quantum  meruit.  The  proof  on  the  part  of  the  defendant  is  only  proper 
to  lessen  the  quantum  of  damages,  or  the  price  allov.ed  for  the  work. 

"  Where  the  plaintiff,  under  a  special  agreement,  has  executed  the  work 
improperly,  since  he  has  not  done  that  which  he  engaged  to  do,  and  which 
is  the  consideration  of  the  plaintiff's  promise  to  pay,  it  seems  now  to  be 
settled  (7  E.  479)  that  he  must  recover,  if  at  all,  upon  the  quantum  meruit, 
and  that  he  cannot  recover  more  than  the  value  of  the  materials  and  work 
to  the  defendant ;  though,  where  this  defence  is  intended  to  be  set  up,  no- 
tice of  it  should  be  given.  7  E.  749.  And  where  the  plaintiff  has  execu- 
ted the  work  so  ill  that  the  defendant  has  derived  no  benefit  from  it,  or 
none  which  exceeds  in  value  what  he  may  have  already  paid,  the  plaintiff 
is  not  entitled  to  recover  any  more,  even  for  the  labor  and  materials  7  E. 
479.  3  Taun.  52."  The  great  objection  to  this  doctrine  is,  that  if  the 
builder  has  contracted  below  the  ordinary  prices,  he  may  thus  recover  on 
the  quantum  meruit  a  greater  compensation  for  his  labor  than  he  had  con- 
tracted for,  and  thus  derive  advantage  from  his  own  wrong,  unless,  indeed, 
the  quantum  meruit  is  to  be  controlled  as  far  as  may  be  by  the  terms  of  the 
special  agreement.  Where  deviations  from  a  specification  are  made  by 
mutual  consent,  the  plaintiff  recovers  according  to  the  terms  of  the  contract 
and  specification,  as  far  as  they  are  applicable,  and  upon  a  quantum  meruit 
as  to  the  rest.  1  Starkie's  Cases,  275.  Peake's  C.  103.  4  Starkie,  98. 
In  such  a  case  there  should  be,  of  course,  both  a  special  and  general  count. 

"  Where  the  plaintiff  declares  on  a  contract  which  is  entire,  he  must  re- 
cover on  the  whole  contract  taken  together,  and  cannot  either  apportion 
or  recover  on  the  common  counts."     6  T.  R.  320. 

This  was  the  case  of  a  mariner  to  whom  the  master  engaged  in  Jamaica 
to  give  JE30  on  his  arrival  at  Liverpool,  provided  he  proceeded,  continued, 
and  did  his  duty  on  board  the  ship.  He  died  a  few  days  before  she  reached 
the  port.  It  was  decided  that  his  representatives  could  not  recover  in  as- 
sumpsit for  the  time  he  had  served.  J3ut  the  case  seems  to  have  turned,  in 
part,  on  the  seaman's  havino-  enorafrcd  for  hicrher  waores  than  usual,  and 
the  payment  made  to  depend  upon  a  condition  precedent  which  was  not 
performed.  It  was  considered  a  kind  of  insurance.  He  was  to  get  high 
wages  if  ho  completed  the  contract,  and  nothing  unless  the  whole  duty  was 
performed. 

On  the  principle  above  stated,  when  the  contract  is  entire,  the  party  for 
whose  benefit  the  act  is  to  be  done  may,  if  it  be  not  performed  in  the 
whole,  refuse  to  accept  a  part,  and  then  no  action  will  lie  for  that  part;  so 
far  from  it,  that  if  he  had  paid  money  on  the  contract,  he  may  recover  it 
back.  7  T.  R.  181.  Hence,  where  six  hogsheads  of  rum  were  sold,  and 
only  three  sent,  the  defendant  was  held  justifiable  in  refusing  to  accept 
them,  and  the  plaintiff  could  not  recover  the  price  of  them.  3  John.  Rep. 
534.     Yet  if  he  had  accepted  them,  then  he  would  have  been  bound  ;  for 


CHAP.  9. J  ASSUMPSIT.  151 

where  the  plaintiff  sold  one  thousand  bushels  of  wheat,  to  be  delivered  be- 
fore the  1st  of  March,  and  delivered  nine  hundred  bushels  within  the  time, 
he  was  entitled  to  recover;  for  though  the  agreement  was  entire,  yet  every 
delivery  made  a  several  contract,  which  would  maintain  this  action.  1 
Esp.  1-29,  Barker  vs.  Sutton.  Lewis  vs.  Weldon,  Court  of  Appeals,  1824. 
3  Ran.  71. 

"•2.  The  plaintiff's  proof  must  correspond  with  his  title,  as  laid  in  the 
declaration  ;"  and  if  it  does  not,  he  will  be  non-suited.     1  Salk.  28-2. 

"Therefore,  where  the  plaintiff  declared  as  executor,  on  a  promise  to 
the  testator,  and  on  non-assianpsit  infra  sex  annos  pleaded,  gave  in  evidence 
a  promise  made  to  himself  within  that  time.  It  was  held  that  it  should  not 
have  been  given  in  evidence  in  support  of  the  declaration,  but  that  the 
plaintiff  should  have  declared  on  a  promise  to  himself."  1  H.  &  M.  56iJ.. 
3H.  &M.  401.     See  3  Call,  248. 

^  "  So  in  assumpsit  against  several,  a  joint  debt  or  contract  must  be  prov- 
ed ;  for,  otherwise,  the  proof  would  not  correspond  with  the  declaration." 

''But  where  the  person  bringing  the  action  has  looked  to  the  faith  of  se- 
veral partners,  who  are  in  business  together,  and  has  relied  on  their  joint 
credit,  though  but  one  only  of  the  partners  has  acted,  the  other  partners 
shall  be  charged,  unless  they  show  a  disclaimer;  and  proof  of  the  act  of 
one  shall  charge  them  all."  Salk.  292.  If  only  one  partner  be  sued,  the 
other  must  plead  it  in  abatement,  as  be  must  be  conusant  of  the  fact,  and 
cannot  take  advantage  of  it  at  the  trial.  Chitty's  Pleading,  29,  citing  1 
Saun.  154,  n.  1— 291,  b.  n.  4.  5T.  R.  651.  1  E.  20.  4  T.  R.  725.  2 
Bl.  R.  947. 

All  parties  must  join  as  co-plaintiffs  in  actions  on  matters  of  contract; 
if  any  are  omitted,  it  may  be  pleaded  in  bar,  or  the  plaintiff  may  be  non- 
suited on  the  trial,  because  the  contract  proved  being  joint,  does  not  cor- 
respond with  that  alleged,  which  is  several  or  single.  See  1  Saun.  291,  b. 
c.  1  B.  &  P.  70.  1  Chitty,  27.  But  it  is  otherwise  in  cases  of  tort,  for 
there  if  one  partner  sues  without  the  other  for  an  injury  to  the  joint  proper- 
ty, the  defendant  must  plead  it  in  abatement,  or  he  cannot  afterwards  take 
advantage  of  it.  6  T.  R  766.  And  if  one  partner  sues  for  his  share  of  the 
wrong,  and  no  plea  in  abatement  being  filed,  he  recovers,  the  other  may 
afterwards  sue  alone  for  his  share,  and  then  even  a  plea  in  abatement  will 
not  avail  the  defendant ;  for  he  should  have  pleaded  it  in  the  first  suit.  7 
T.  R.  279 

"  3.  It  was  formerly  the  opinion,  that  on  a  count  of  insiiiml  coinputassent, 
the  plaintiff  was  obliged  to  prove  the  exact  sum  laid,  but  that  idea  is  now 
exploded,  and  the  plaintiff  may  now  recover  part  of  the  sum  demanded  on 
this  count  as  well  as  on  any  other." 

"But  the  court  will  not  admit  any  evidence  of  an  account  current  and 
unliquidated ;  for  that  would  involve  the  court  in  a  tedious  examination. 
The  account,  therefore,  must  always  be  exhibited  as  an  account  stated." 

The  defendant  is,  in  the  action  upon  an  account  stated,  confined  to 
pointing  out  errors  on  the  face  of  the  settlement,  and  cannot  go  into  a  re- 
examination of  the  items.     3  Call,  5. 

"4.  In  assumpsit  against  an  executor,  and  plene  administravit  pleaded, 
the  plaintiff  must,  aotvvithstaning,  prove  his  debt,  or  he  shall  recover  but 
one  penny  damages,  though  there  be  assets  ;  for  the  plea  only  admits  the 
debt,  but  not  the  quantum  of  it.     1  Salk.  296. 

"3.  Of  the  phadingS'On  the  part  of  the  defendant.  The  plea  should  al- 
ways answer  to  the  promise  or  undertaking  as  laid  in  declaration."  2  Str. 
919. 

*'  So  the  plea  must  answer  to  every  part  of  the  declaration."     1  Str.  302. 


152  ASSUMPSIT.  [  BOOK  3. 

"  For  if  the  plea  be  pleaded  to  the  whole  promise,  and  yet  answers  but  a 
part,  the  whole  plea  is  nought,  and  the  plaintiff  should  demur.  But  when 
it  is  pleaded  to,  and  answers  but  to  a  part,  it  is  a  discontinuance." 

The  meaning  of  this  is,  that  it  will  be  a  discontinuance  if  the  plaintiff 
demurs  or  replies  to  the  plea  instead  of  taking  judgment  (as  he  may  well 
do)  for  that  part  of  his  claim  which  the  defendant  has  failed  to  defend  or 
deny  ;  for  that  being  unanswered,  he  has  a  right  to  his  judgment  by  7iil  dicit. 
1  Salk.  179,  180.     1  Saun.  28,  n.  1,  2,  3.     1  Chitty,  509. 

"  The  defendant  cannot  plead  in  bar,  that  he  revoked  and  countermand- 
ed his  promise."     3  Lev.  214. 

"Matters  of  law  that  do  not  go  to  the  denial  of  the  original  cause  of  ac- 
tion, but  to  the  discharge  of  it,  inust  be  pleaded :  such  as  accord  and  satis- 
faction, the  statute  of  limitations,  &c. 

1.  "Accord  and  satisfaction  is  a  good  plea  in  assumpsit :  but  it  must  be 
performed  at  the  time  of  the  plea.  For  a  bare  accord  without  satisfaction 
is  no  plea."     3  Call,  234.     2  T.  R.  21.     2  H.  B.  317. 

"Payment  is  a  good  plea  under  this  head  of  satisfaction  ;  for  it  admits  a 
good  cause  of  action,  though  discharged  by  a  subsequent  transaction."  2 
Lord  Ray.  787.     The  general  issue  is  however  most  advisable. 

"Payment  of  a  lesser  sum  before  the  time  must  always  be  pleaded,  for  it 
is  not  a  performance  which  destroys  the  being  of  a  promise,  but  a  collateral 
agreement  that  supplies  the  place  of  it.  But  such  evidence  may  be  given  in 
mitigation  of  damages;"  2 Lev.  81  ;  that  is,  the  defendant  will  have  credit 
for  it. 

"  And  wherever  accord  and  satisfaction  is  pleaded,  it  must  appear  to  the 
court  to  be  a  reasonable  and  good  satisfaction,  and  be  accepted  by  the 
plaintiff  as  such  ; — such  as  a  better  security.  And  therefore  a  bond  may 
be  pleaded  in  bar  of  a  simple  contract  debt." 

2.  "  The  statute  of  limitations  is  the  next  plea  in  bar  I  shall  consider. 
And  this  must  always  be  pleaded,  and  cannot  be  given  in  evidence  on  the 
general  issue."     See  3  Chitty's  Black.  245,  n.  40. 

The  lex  fori,  and  not  the  lex  loci  contractus,  governs  the  time  of  limita- 
tion of  actions.     13  E.  439,  450.     3  John.  C.  R.  217.     2  Ran.  303. 

Consider  here  "  against  what  demands  it  runs.  The  statute  of  limitations 
runs  against  the  plaintiff's  demand  in  actions  of  assumpsit  generally,  so  as 
to  be  a  complete  bar  notwithstanding  any  mesne  acts  intervening,  as  the 
bankruptcy,  coverture,  8cc.  of  the  parties  ;"  for  when  it  once  begins  to  run 
it  never  stops.  4  T.  R.  311.  Ridg.  R.  331.  1  Str.  556.  2H.  &M.  289. 
3  Cranch,  173.     0  Mun.  355.     6  E.  80.     6  Mun.  352. 

"The  statute  of  limitations  runs  also  against  bills  of  exchange  and  pro- 
missory notes  ;  which  must  be  sued  for  within  five  years,  or  the  holder  will 
be  barred. 

"The  statute  is  a  good  plea  in  bar  to  an  action  by  an  attorney  for  his 
fees,  though  it  was  insisted  that  such  demand  was  out  of  the  statute,  as  the 
fees  arose  on  a  suit  which  was  matter  of  record."  So  it  is  a  good  plea  for 
an  attorney,  even  in  an  action  for  money  received  by  him  for  his  client.  1 
Ran.  284.     When  it  begins  to  run,  see  3  Barn.  &  Aid.  626. 

Where  there  are  mutual  demands  or  accounts  current  between  parties, 
and  credit  given  on  both  sides,  in  such  case  if  any  item  on  the  part  of  the 
defendant  is  within  five  years,  it  shall  prevent  the  statute  from  attaching. 
For  the  giving  the  credit  amounts  to  an  admission  of  some  unsettled  ac- 
count between  the  j)artics,  and  any  act  which  the. jury  may  consider  as  an 
acknowledgment  of  there  being  an  c)pcn  account,  is  sufficient  to  take  the 
case  out  of  the  statute.  6  J.  Rep.  193.  2  Saun.  127,  c.  in  note.  And  this 
is  the  law,  not  in  reference  to  accounts  between  merchant  and  merchant  on- 


CHAP.  9.]  ASSUMPSIT.  153 

ly,  but  in  relation  to  accounts  between  all  other  persons.  But  where  all  the 
items  within  five  years  are  on  the  side  of  the  plaintid",  these  items  shall  not 
draw  after  them  those  that  are  of  longer  standing  ;  for  there  is  here  no  act 
of  the  defendant's  to  be  construed  into  an  acknowledgment. 

In  the  statute  there  is  an  exception  of  such  accounts  as  concern  the  trade 
of  merchandize  between  merchant  and  merchant,  their  factors  or  servants. 
In  order  to  bring  his  case  within  this  clause,  the  plaintiff  must  shew  that 
both  parties  were  merchants,  &c.  For  the  exception  does  not  extend  to 
accounts  between  a  merchant  or  shopkeeper  and  his  customers  who  are  not 
merchants.  So  there  must  be  mutual  accounts  or  reciprocal  demands  ;  for 
if  all  the  items  are  on  one  side,  it  is  not  an  account  between  merchant  and 
merchant.  See  Bull.  149,  150.  G  T.  R.  193.  5  John.  C.  524.  It  was  at 
one  time  thouglit  that  the  exception  only  extended  to  merchants  beyond  sea, 
and  that  inland  merchants  and  shopkeepers  were  not  included.  2  Saun. 
ubi  sup.  But  this  notion  is  exploded.  It  was  also  at  one  time  supposecWhat 
to  bring  even  a  merchant's  account  out  of  the  statute,  there  must  be  some 
item  of  credit  within  five  years.  But  this  idea  is  also  incorrect.  Then  it 
was  said  that  in  the  case  of  merchants'  accounts  the  plaintifl"  is  not  barred, 
though  there  has  been  no  transaction  of  any  kind  between  the  parties  for 
five  years.  6  T.  R.  193.  Yet  here  we  must  advert  to  a  distinction  be- 
tween an  account  stated,  and  those  cases  where  the  dealings  between  the 
parties  are  closed,  but  the  accounts  are  not.  For  though  the  dealings  be- 
tween merchant  and  merchant  have  ceased  more  than  five  years,  yet  if  the 
accounts  are  not  closed,  they  were  held  to  be  within  the  exception  of  the  sta- 
tute. But  Chancellor  Kent  seems  to  doubt  whether  open  accounts  are  not 
also  within  the  statute,  (though  they  be  between  merchant  and  merchant,) 
where  the  last  item  is  above  five  years'  standing.  5  John.  C.  522  ;  and  see 
6Vez.  580.  15Vez.  19S.  18Vez.286;  where  this  opinion  is  sustained. 
But  in  19  Vez.  184,  185,  the  whole  matter  seems  to  be  again  unsettled.  As 
to  accounts  stated,  there  can  be  no  doubt.  For  an  account  stated  is  where 
the  accounts  between  the  parties  have  been  either  actually  settled,  or  are 
presumed  to  be  so  from  the  circumstance  of  a  party's  retaining  for  a  long 
time,  without  objection,  the  account  of  the  other  party  which  has  been  pre- 
sented to  him,  shewing  a  balance  against  him ;  and  in  these  cases  the  de- 
mand is  not  within  the  exception  of  the  statute.  By  the  settlement  it  has 
ceased  to  be  an  account.  It  has  become  an  ascertained  debt.  All  intricacy 
of  account  is  at  an  end,  and  thus  it  is  neither  within  the  letter  nor  the  spi- 
rit of  the  exception,  and  of  course  is  barred  by  the  general  provision.  See 
2  Saun.  127,  d.  e.  in  note.  5  Cranch,  18,  19.  An  account  stated  may  in- 
deed exist,  as  I  have  just  intimated,  where  there  has  been  no  actual  settle- 
ment between  the  parties  ;  as  in  the  case  just  mentioned  where  a  merchant 
forwarded  his  account  against  another,  shewing  a  balance  against  him,  and 
he  kept  it  for  two  years  without  objection.  7  Cranch,  147.  2  Vez.  239.  2 
Atk.  252.  It  may  here  be  remarked  that  where  dealings  have  long  ceased 
between  merchants,  though  the  accounts  are  not  closed  so  as  to  constitute 
an  account  stated,  yet  equity  will  not  decree  an  account,  but  will  leave  the 
parties  to  the  law.     2  Vern.  276.     Gilb.  Eq,  R.  225. 

It  was  formerly  held  that  the  exception  in  the  statute  applied  only  to  ac- 
tions of  account.  Garth,  226.  2  Saun.  127,  c.  in  note.  But  it  has  in  mo- 
dern times  been  decided  that  it  applies  to  actions  of  assumpsit,  as  well  as  to 
actions  of  account.  5  Cranch,  IS.  Yet  it  would  seem  that  the  action  of 
assumpsit  must  relate  to  matter  of  account,  for  an  action  by  one  merchant 
against  another,  on  a  bill  of  exchange  or  promissory  note,  would  not  appear 
to  be  within  the  exception.     See  Carth.  226. 

Store  accounts  of  retail  dealers  (1  Wash.  190.     3  Gall,  514,)  for  goods 
sold  to  customers,  must  be  sued  for  within  one  year;  and  all  articles  of 
VOL.  2—20 


154  ASSUMPSIT.  [book3» 

more  than  one  year's  standing  shall  be  rejected  under  the  statute.  But  if 
the  action  be  grounded  on  an  express  assumpsit,  an  action  brought  upon  it 
within  five  years  will  not  be  barred,  though  the  consideration  of  the  assump- 
sit was  a  store  account,  and  though  the  assumpsit  was  not  within  the  year. 
3  Call,  514.  The  party  wishing  to  avail  himself  of  this  clause  of  the  act 
must  plead  it ;  3  Mun.  8 ;  though  distinguished  counsel  seem  to  have 
thought  otherwise.     3  Call,  518. 

"  In  the  same  statute  is  a  saving  of  the  right  of  infants,  feme  coverts,  non 
compos,  persons  imprisoned  or  beyond  sea.  So  that  the  statute  does  not  run 
against  any  demand  that  they  may  have  against  others,  provided  they  bring- 
their  actions  within  five  years  after  the  disabilities  removed." 

Yet  any  of  these  persons  may  sue  before  the  disability  removed,  though 
the  infant  must  sue  by  his  guardian  or  prochein  amy,  the  person  non  compos 
by  his  committee,  and  the  feme  covert  jointly  with  her  husband.  See  2 
Saun.  120. 

Beyond  sea  is  equivalent  to  "out  of  the  state."  3  Cranch,  176.  The 
expression  in  our  act  in  one  section  is,  "beyond  sea  or  out  of  the  coun- 
try." In  other  sections  it  is  "  not  within  this  commonwealth."  They 
mean  the  same  thing.  See  the  English  doctrine  as  to  Scotland  not  being 
within  the  clause  of  their  act.     1  Bl.  Rep.  28(3. 

If  the  plaintifT  be  in  the  state  when  the  cause  of  action  begins  to  run, 
his  subsequent  departure  will  not  bring  him  within  the  saving.  1  Wils. 
134.  4  T.  R.  311.  So  though  his  residence  was  abroad,  his  coming  to 
the  state  even  temporarily,  removes  the  disability.  3  Cranch,  174.  So 
where  goods  are  sold  by  a  factor  here,  or  where  the  action  is  joint,  and  any 
of  the  parties  reside  in  Virginia,  the  statute  v/ill  bar.  4  T.  R.  516.  7 
Cranch,  156.  1  R.  C.  128,  §  13.  And  now  by  statute,  Sess.  acts,  1825, 
ch.  23,  the  saving  in  favor  of  persons  not  within  the  commonwealth  is  re- 
pealed. 

There  is  a  farther  saving  in  the  statute  where  the  defendant  absconds  or 
conceals  himself,  or  by  removal  out  of  the  country  or  county  of  his  resi- 
dence when  the  action  accrued,  or  by  any  other  indirect  ways  or  means,  de- 
feats or  obstructs  the  bringing  the  action.  In  this  case  he  cannot  plead  the 
act  at  all,  and  if  he  does  the  plaintiff  must  reply  this  special  matter.  1  R. 
C.  ch.  128,  §  14.  In  case  of  mere  removal,  however,  it  must  appear  that 
the  plaintiff  was  actually  defeated  or  obstructed  in  bringing  his  action.  7 
Cranch,  202. 

Nor  can  the  act  be  pleaded  by  a  master  of  a  vessel  who  carries  off  ser- 
vants or  slaves  contrary  to  law,  or  puts  ashore  disabled  or  sick  seamen,  or 
servants,  without  providing  for  their  maintenance.     1  R.  C.  ch.  128,  §  15. 

As  to  executors  :  The  provisions  of  the  act  of  limitations  may  be  consi- 
dered, first,  as  they  respect  executors,  plaintiffs.  Tlie  statute  provides,  (1 
R.  C.  ch.  128,  §  10,)  that  where  judgment  is  given  for  the  plaintiff  which 
is  afterwards  reversed  for  error,  and  judgment  given  that  he  take  nothing  by 
his  plaint,  writ,  or  bill,  the  plaintiff  may  within  a  year  after  such  reversal 
commence  a  new  suit,  though  the  period  of  limitation  may  then  have  ex- 
pired. It  has  been  said,  that,  by  the  equity  of  this  statute,  if  a  testator  die 
within  the  time  of  limitation,  and  the  executor  takes  out  proper  process 
within  the  year,  the  bar  of  the  statute  will  be  saved.  Selw.  1-30.  And  this, 
I  think,  seems  to  have  been  the  idea  of  the  court  of  appeals  as  to  cases  at- 
tempted to  be  brought  within  the  equity  of  this  statute.  1  Wash.  303. 
Yet  Mr.  Selwyri  tells  us,  that  perhaps  the  only  rule  that  can  be  laid  down 
with  safety,  is,  that  the  executor  must  sue  within  reasonaole  time  ;  and 
some  judges  adoj)!,  the  same  idea  by  analogy  to  the  common  law  doctrine 
of  Journey's  accomjtls,  and  say  that  the  party  must  proceed  in  reasonable 
time,  which  is  to  be  "  discussed  by  the  justices."    See  6  Co.  9, 10,.  II.    Selw. 


i-i  •  i/J  ASSUMPSIT.  155 

131.     It  is  not  a  good  replication  to  the  plea  of  the  statute  that  the  plain- 
tiff sued  in  five  years  after  administration  granted.     Willes,  27. 

Secondly.  As  to  executors,  defendants  :  The  law  of  Virginia  provides  in 
relation  to  actions  against  them  upon  open  accounts,  that  it  shall  be  the 
duty  of  the  court  to  expunge  from  the  account  every  ile7)i  of  five  years 
standing.  1  R.  C.  ch.  128,  §  16.  It  is  not  necessary,  indeed,  that  the  court 
should  actually  expunge  them,  as  an  instruction  to  the  jury  to  disregard 
them  is  a  sufficient  compliance  with  the  law.  1  H.  St  M.  378.  And  it 
must  also  be  remarked  that  this  section  only  applies  to  open  accounts  and 
implied  assumpsits,  and  not  to  settlements  or  express  assumpsits  by  the  tes- 
tator. 4  H.  &  M.  266.  There  is  in  this  section  the  usual  saving  as  to  the 
rights  of  infants,  femes  covert,  &c. 

"  In  all  cases  where  money  is  to  be  recovered  back  where  it  has  been 
paid  by  mistake,  or  for  a  consideration  which  has  happened  to  fail,  the  sta- 
tute of  limitations  begins  to  run  from  the  time  the  money  was  so  paid,  for 
from  that  time  the  right  to  recover  it  back  accrued."  Doug.  630.  In  cases 
of  fraud  the  act  runs  from  the  time  it  is  discovered.     Ibid. 

"What  shall  prevent  the  statute  from  attaching.  1.  The  first  is  a.  promise 
by  the  defendant  to  pay  the  debt  after  the  five  years  have  elapsed  ;  for  this 
is  a  revival  of  the  assumpsit,  and  no  new  consideration  is  required  :  for  the 
plea  admits  a  cause  of  action  before  five  years." 

That  a  new  promise  to  pay  will  bind  the  debtor  and  take  a  debt  out  of 
the  statute,  is  well  settled  by  decisions  in  our  own  courts,  as  well  as  those 
of  Great  Britain.  See  3  Call,  514.  Lord  Ray.  389.  But  the  cases  have 
gone  much  farther,  and  as  the  statute  was  made  to  protect  persons  against 
antiquated  claims,  the  evidence  of  payment  whereof  they  may  have  lost, 
they  have  admitted  an  acknowledgment  of  the  existence  of  the  debt  to  take 
a  case  out  of  the  act.  2  Bur.  1099.  2  Vent.  151.  Cow.  548.*  And  the 
slightest  acknowledgment  has  been  holden  sufficient;  as  "  prove  your  debt 
and  I  will  pay  you," — "I  am  ready  to  account,  but  nothing  is  due,"  and 
such  like.  1  Salk.  29.  16  E.  420.  2  T.  R.  762.  4  E.  599.  And  what 
amounts  to  an  acknowledgment  is  to  be  left  to  the  jury.  2  T.  R.  760.  4 
E.  604,  note.  There  must,  however,  be  something  that  amounts  to  an  ac- 
knowledgment of  a  debt ;  for  v^here  the  acknowledgment  of  the  receipt  of 
money  was  accompanied  by  a  declaration  that  it  was  given  to  the  defen- 
dant by  the  plaintiff's  testator,  this  did  not  suffice.  Bull.  148.  And  the  ac- 
knowledgment must  go  to  the  fact  that  the  debt  is  still  due  and  unpaid,  for 
the  mere  admission  of  its  original  justice  will  not  do,  since  the  statute  was 
intended  to  protect  persons,  not  from  claims  fictitious  in  their  origin,  but 
from  claims  once  good  that  may  have  been  discharged.  8  Cranch,  74.  The 
courts  have  confessedly  gone  far  enough,  and  have  said  they  will  go  no 
farther.  In  England  there  seems  some  discrepancy  between  the  different 
tribunals  on  this  subject.  See  7  Taun.  608.  4  E.  599.  2  Hovenden's 
Sup.  312.  4  Starkie,  892.  2  Barn.  &  Aid.  760.  4  Barn.  &  Aid.  568. 
See  2  Saun.  64,  b.  in  note. 

It  must  be  farther  observed,  that  even  where  the  acknowledgment  of  the 
existence  of  a  debt  has  been  admitted  to  take  a  case  out  of  the  statute,  it 
has  been  only  on  the  ground  that  such  acknowledgment  affords  reason  to 
presume  a  promise  of  payment.  Hence,  if  a  verdict  should  find  the  ac- 
knowledgment merely,  the  court  could  not  infer  a  promise,  though  the  jury 
might  have  done  so  ;  and  in  such  case,  therefore,  the  bar  of  the  statute 
would  be  unimpaired.     On  this  subject  Chancellor  Kent  observes,  6  John. 

*It  is  said  an  acknowledgment  to  a  third  person  will  suffice.  2  Bnrn.  &  Cres.  149.  This  vvould 
sejsm  to  depend  on  tiie  question  wlietiier  the  acknowledgment  is  to  operate  as  a  new  substantial  pro- 
mise, or  as  drawing  down  tlie  original  promise  to  the  time  of  tiie  acknowledgment.  As  to  this,  see 
1  Barn.  &  Aid.  93.  8  C.  L.  K.  GJ.  1  Barn.  &  Cres.  ^10.  G  Taun.  210.  1  Peters,  351.  4Leigh,6iy, 
G03. 


156  ASSUMPSIT.  [book  3. 

C.  290,  that  "an  acknowledgment  of  the  debt  is  sufBcient  ground  for  a  ju- 
ry to  presume  a  new  promise  ;  and  it  is  the  new  promise,  and  not  the  mere 
acknowledgment,  that  revives  the  debt  and  takes  it  out  of  the  statute."  If 
the  acknowledgment  be  qualified  in  a  way  to  repel  the  presumption,  it  is 
not  evidence  of  a  promise  to  pay.*  Id.  11  John.  146.  13  John.  288. 
15  John.  511.  Moreover,  Chief  Justice  Abbott  is  said  to  have  decided  that 
there  must  be  a  promise.  An  acknowledgment  of  the  existence  of  the 
debt  he  deemed  insufficient. 

The  acknowledgment  of  a  debt  by  one  of  a  mercantile  firm,  whether  be- 
fore or  after  dissolution,  takes  a  debt  out  of  the  statute.  3  Mun.  191. 
Doug.  652.     2  Bing.  306. 

An  acknowledgment  by  an  executor  will  not  revive  a  debt  so  as  to  affect 
the  heir  in  equity  on  a  bill  to  marshal  assets.  6  John.  C.  373.  I  was  also 
of  opinion,  in  the  case  of  Tiernan  vs.  Magill,  Winchester  C.  C.  Nov.  1830, 
that  the  acknowledgment  of  the  executor  did  not  revive  the  debt  so  as  to 
enable  the  creditor  to  recover  from  the  administrator  de  bonis,  non  to  whom 
the  estate  was  committed  after  the  executor's  death.     Ideo  qiicBre. 

Lastly  :  it  has  been  decided  that  a  bill  in  equity  will  not  lie,  to  compel 
the  defendant  to  discover  if  he  had  not  made  a  new  promise  to  pay.  2  John. 
C.  150  ;  also,  Martin's  ex.  vs.  Williams,  per  Chan.  Carr,  at  Winchester. 
But  a  contrary  decision  is  reported,  5  Mad.  331,  cited  by  Mr.  Chitty  in  his 
notes  on  the  subject  of  equitable  jurisdiction. 

"  The  next  mode  by  which  the  statute  is  prevented  from  becoming  a  bar, 
is  by  having  sued  out  process  out  of  some  court  before  the  five  years  elaps- 
ed, and  having  proceeded  on  it." 

I  have  already  referred  to  the  provision  of  the  statute  which  enables  a 
plaintiff,  whose  judgment  is  arrested  or  reversed,  to  begin  again  within  a 
year,  and  to  reply  to  the  plea  of  the  statute  that  he  had  commenced  and 
prosecuted  suit  within  the  five  years,  in  which  suit  judgment  was  arrested, 
&c.  The  equity  of  this  statute  has  been  extended,  it  has  been  said,  to  all 
cases  where  the  plaintiff  "  gets  out  of  court "  in  any  manner.  See  1 
Wash.  303.  This  expression  seems  perhaps  too  general,  as  the  provision 
would  not  relieve  a  plaintiff,  I  presume,  who  suffers  a  nonsuit,  or  whose 
suit  has  been  irregularly  prosecuted.  See  2  Mun.  511.  1  Ran.  436.  The 
English  books,  however,  are  full  of  cases  to  shew  that  where  a  plaintiff 
Commences  an  action,  though  the  process  be  informal  or  irregular,  it  will 
save  the  bar  of  the  statute,  provided  the  process  was  returned  and  regularly 
continued,  and  the  new  suit  is  brought  in  reasonable  time.  Willes'  R.  258. 
Lord  Ray.  883.  3  T.  R.  662.  1  Selw.  127.  6  T.  R.  618.  2  Black. 
Rep.  1131.  4  Bac.  Abr.  482.  But  the  party,  it  seems,  ought  to  com- 
mence his  second  suit  within  a  year  after  the  determination  of  the  first,  or 
he  will  be  barred.  1  Wash.  302,  303.  And  he  must  reply  the  former  suit 
specially.     3  Call,  1. 

This  is  somewhat  in  the  nature  o?  Journey's  accounts,  a  term  in  the  old 
law  thus  understood  : — If  a  plaintiff's  suit  abated  by  death,  or  was  "  inepte 
conceptum,"  as  Bracton  calls  it,  and  abated  for  false  Latin,  want  of  form, 
&c.,  he  might  have  a  new  writ  by  Journei/s  accounts,  that  is  (originally) 
within  a  computed  time,  (journees  accomptes,)  and  (afterwards)  within  as 
little  a  time  as  possible  after  the  abatement  of  the  first ;  and  this  second 
writ  was  a  continuance  of  the  original  cause,  as  if  it  had  never  abated. 
This  learning  is  now  out  of  use,  it  being  the  custom  at  present  to  quash 
the  first  writ  and  issue  another.  By  our  law,  indeed,  abatements  rarely  oc- 
cur, as  will  be  hliewn  elsewhere.     See  1  Bac.  Abr.  Abatement. 

If  the  plaintiff  files  a  bill  in  chancery  within  the  five  years,  which  bill  is 
dismissed  because  the  matter  was  cognizable  at  law,  its  pendency  cannot 
"  Sec  2  I3;u II.  &  Cics.  1 1!).    3  Bing.  329. 


CHAP.  9]  ASSUMPSIT.  157 

be  replied  in  a  subsequent  suit  at  law  to  save  the  bar  of  the  statute.  4 
Mun.  181.  1  Atk.  282.  2  Atk.  1.  Where,  however,  justice  would  re- 
quire it,  perhaps  the  court  of  chancery  would  enjoin  the  defendant  from 
pleading  the  act,  as  Lord  Hardwicke  said  he  would  do.  2  Atk.  615.  And 
where  the  delay  has  been  produced  by  the  defendant  himself,  as  by  an  in- 
junction, the  plaintiff  will  not  be  barred.     2  Ch.  Ca.  217. 

"How  the  statute  is  to  be  pleaded." 

Here  observe  that  the  plea  of  "  non-assumpsit  within  five  years,"  without 
adding  "  next  before  the  institution  of  the  suit,"  or  words  to  the  like  effect, 
relates  to  the  time  of  pleading,  and  is  therefore  not  a  good  plea,  since  it 
must  appear  that  the  suit  was  not  commenced  within  five  years  after  the  as- 
sumpsit. 1  Wash.  135.  3  Call,  248.  If,  however,  the  evidence  is  de- 
murred to,  and  shews  a  bar  under  the  act,  a  repleader  ought  not  to  be 
awarded,  since  it  is  obvious,  that,  upon  amending  the  plea,  the  plaintiff 
must  be  barred.     3  Call,  248. 

The  plea  of  the  statute  of  limitations  ought  not  to  conclude  to  the  country 
but  with  a  verification  ;  for  it  is  a  special  plea  setting  forth  matter  of  defence, 
independent  of  the  original  merits  of  the  plaintiff's  claim.     1  Wash.  135. 

After  a  verdict,  it  seems  that  a  plea  of  "the  act  of  limitation,"  in  these 
words  only,  is  good,  though  it  was  contended  that  it  ought  to  have  appear- 
ed, however  informally,  which  branch  of  the  statute  was  relied  on.  4 
Mun.  444. 

"  Where  the  cause  of  action  is  to  arise  from  a  collateral  executory  consi' 
deration,  as  some  act  to  be  performed  and  a  promise  to  pay  in  consequence 
of  it,  there  non-assumpsit  infra  sex  annos  is  not  the  proper  plea  ;  for  the  as- 
sumpsit does  not  arise  till  the  consideration  is  performed,  which  may  be 
long  after  the  promise  made :  it  should  be  actio  non  accrevit  infra  sex  an^ 
nos."     2  Salk.  422.* 

"  But  this  is  the  case  of  assumpsit  on  collateral  and  executory  conside- 
rations only  ;  for  where  the  action  is  indebitatus  assumpsit  for  a  supposed 
subsisting  debt,  it  is  otherwise." 

"  A  plea  that  the  defendant  ivas  a  bankrupt  and  had  obtained  his  certifi- 
cate, is  a  good  plea  to  discharge  all  debts  due  before  his  bankruptcy."  But 
a  plea  of  discharge  under  an  insolvent  act  is  no  bar,  for  that  does  not  dis- 
charge the  debt ;  if,  indeed,  the  act  itself  provides  that  the  debt  shall  be 
discharged,  it  is  unconstitutional.  .  4  Wheat.  122.     Sed  vide  12  W.  213. 

The  next  plea  to  be  considered  is  a  tender.  This  is  to  be  pleaded  where 
the  defendant  admits  the  plaintiff's  claim,  or  some  part  of  it,  to  be  due. 
Where,  before  action  brought,  the  defendant  tenders  the  money  to  the 
plaintiff,  and  he  refuses  to  receive  it,  the  defendant  may  plead  the  tender 
and  refusal,  and  allege  that  he  has  always  been  ready  since  it  became  due, 
and  still  is  ready  to  pay  it,  and  that  he  brings  the  money  into  court  ready 
to  be  paid  to  the  plaintiff.  1  Wash.  26.  And  these  averments  are  essen- 
tial. 2  Wils.  74.  1  Str.  638.  The  money  must  always  accompany  the 
plea.  3  Call,  243.  If  the  defendant  proves  the  truth  of  this  plea,  he  saves 
the  costs  of  the  suit  and  interest,  and  recovers  costs  from  the  plaintiff,  but 
the  money  paid  in  is  delivered  over  to  the  latter.  See  3  Black.  304.  1 
Vent.  21.  So  he  may  plead  non-assumpsit  as  to  part,  and  tender  as  to  the 
residue,  thus  making  up  a  plea  going  to  the  whole  action.  And  by  our 
law  he  may  plead  one  plea  of  non-assumpsit  as  to  the  whole,  and  another 
of  tender  as  to  the  whole.  But  he  cannot  plead  in  the  same  plea  non-as- 
sumpsit as  to  the  whole,  and  a  tender  as  to  part.  For  though  our  act  ad- 
mits inconsistent  pleas,  which  the  English  act  does  not,  (4  T.  R.  195,)  yet 
it  does  not  justify  a  plea,  the  parts  of  which  are  inconsistent  with  each 
other.     See  3  Wils.  145.     4  T.  R.  194. 

*  When  the  statute  begins  to  run :  see  3  Barn.  &  Aid.  238,  (KG.    6  Cowan,  233,    Post.  409. 


158  ASSUMPSIT.  [  BOOK  3. 

A  tender  may  be  pleaded  to  a  quantum  meruit,  though  the  demand  is  un- 
certain.    Str.  576. 

A  tender  ought  always  to  be  before  commencement  of  suit.  8  T.  R.  629. 
And  it  should  in  general  be  pleaded  before  an  imparlance,  in  England,  be- 
cause the  asking  an  imparlance  is  contradictory  to  the  plea,  which  avers 
the  defendant  to  be  always  ready.  Here,  I  presume,  it  ought  to  be  plead- 
ed before  office  judgment.     Sed  qiicere,  see  1  Wash.  26. 

In  making  a  tender  the  money  regularly  should  be  produced,  unless  the 
plaintiff,  when  the  tender  is  made,  dispenses  with  it.  So  specie  should  be 
tendered ;  yet  a  tender  of  bank  notes  is  good,  if  no  objection  be  made  on 
that  account  at  the  time  of  the  tender.     3  T.  R.  554.     See  2  B.  &,  P.  526. 

To  the  plea  of  tender  the  plaintiff  may  reply  a  subsequent  demand  and 
refusal,  which  is  a  good  answer  to  the  plea,  for  it  shews  the  defendant  has 
not  been  always  ready. 

When  a  tender  is  made  the  money  should  be  produced,  and  not  kept  in 
the  pocket,  and  it  is  generally  prudent  to  take  a  witness  who  knows  the 
amount  tendered,  so  as  to  be  able  to  establish  it. 

It  is  said  that  a  party  tendering  money  cannot  require,  as  a  condition  of 
the  creditor's  receiving  it,  that  he  should  give  a  receipt.  Peake's  Cases,  179. 
This  seems  not  very  reasonable.  It  would  indeed  be  unreasonable  if  he 
demanded  as  a  condition  a  receipt  in  full,  or  an  acquittance,  when  the 
other  party  supposed  himself  entitled  to  more.  Such  a  demand  would 
doubtless  make  the  tender  bad. 

Foreign  money,  if  made  current  by  act  of  Congress,  is  a  good  tender. 

3.  "  Another  plea  in  this  action  is  that  of  infancy, — though  this  may  be 
a'Iso  given  in  evidence  on  the  general  issue  of  non-assumpsit ;  for  the  pro- 
mise  of  an  infant  cannot  be  enforced  by  suit. 

"  The  general  rule  in  the  case  of  infants  is,  that  they  are  liable  on  no 
contracts,  except  for  necessaries,  as  meat,  drink,  education,  clothes,  &c." 
But  they  are  liable  for  money  embezzled  by  them  ;  for  infancy  is  no  pro- 
tection to  fraud. 

"  Necessaries  for  an  infant's  wife  or  his  child  are  necessaries  for  himself, 
and  he  shall  be  liable."     I  Str.  168.     See  8  T.  R.  578. 

'  But  though  an  infant  is  liable  on  his  contract  for  necessaries,  yet  if  one 
lends  money  to  an  infant,  even  to  pay  for  necessaries,  the  infant  is  not  lia- 
ble ;  for  it  may  be  misapplied."  Salk.  286.  But  if  the  money  be  laid  out 
for  necessaries,  the  lender  will  in  equity  be  permitted  to  stand  in  the  shoes 
of  the  person  who  furnished  them.  "  And  if  the  plaintiff  proves  that  the 
money  was  lent  to  pay  for  necessaries,  and  applied  to  that  purpose,  he  might 
at  law  be  entitled  to  a  verdict;  but,  in  such  case,  the  defendant  should  re- 
join and  take  issue  on  the  expenditure."  Ca.  K.  B.  197.  Sed  vide  2  Esp. 
Ca.  472,  in  note,  where  such  evidence  was  refused. 

"  And  where  infancy  is  pleaded,  'that  the  goods  were  necessaries'  is  the 
proper  replication."  And  what  are  necessaries,  depends  on  the  infant's 
circumstances  and  condition  in  life,  and  must  be  left  to  the  jury.  1  M.  & 
S.  378. 

"Goods  furnished  to  an  infant  «i  the  way  of  his  trade  are  not  necessaries, 
and  therefore  he  is  not  liable ;  for  the  law  will  not  allow  him  to  trade, 
which  may  ruin  him."  Str.  1083.  The  case  cited  in  Bui.  N.  P.  154,  is 
not  law. 

"  And  where  an  infant  is  sub  potestate  parentis,  and  living  in  the  house 
with  his  parents,  he  shall  not  then  be  liable  even  for  necessaries."  Peake's 
Cases,  229. 

"But  though  an  infant  is  thus  exempt  from  all  demands,  except  for  ne- 
cessaries, yet  if  goods,  not  necessaries,  have  been  delivered  to  an  infant, 
and  after  his  coming  of  age  he  promises  to  pay  for  them,  he  thereby  ratifies 


CHAP.  9.]  ASSUMPSIT.  159 

the  contract,  and  shall  be  bound  to  pay.  And  what  amounts  to  such  con- 
firmation, shall  be  matter  to  be  left  to  the  jury  ;"  but  he  shall  not  be  bound) 
farther  than  that  promise  extends.     See  1  T.  R.  648.     1  M.  &,S.  724. 

"And  where  the  plaintiff  relies  on  a  new  promise  made  after  full  age, 
the  infant  must  always  be  charged  on  the  simple  contract"  which  the  new 
promise  was  meant  to  establish,  and  cannot  be  sued  upon  a  bond  which 
he  may  have  given  during  his  infancy,  for  that  is  void.  3  M.  &  S.  477.  In 
such  case  the  bond  does  not  merge  the  simple  contract,  and  that  may  there- 
fore be  sued  upon  where  it  is  for  necessaries,  for  the  bond  was  void  ab  ini- 
tio. 3  Wils.  Bac.  595.  Assumpsit  would  therefore  lie  on  the  promise  to 
pay,  if  made  at  full  age. 

Observe,  however,  that  a  single  bill  for  payment  of  necessaries  is  held 
good  against  the  infant,  though  a  bond  is  not.     1  Lev.  87.     1  T.  R.  40. 

Though  the  promise  of  an  infant  is  voidable  by  him,  yet  a  promise  made 
to  him  in  consideration  of  that  promise  is  good,  and  the  party  of  full  age  is 
liable,  if  the  promise  is  for  the  infant's  benefit.  For  it  was  his  own  folly 
to  deal  with  an  infant ;  and,  therefore,  he  is  bound,  though  the  infant  is  not. 
2  Str.  993. 

"  In  assupmsit  for  use  and  occupation  of  a  house,  by  permission  of  the 
plaintiff,  nil  habuit  in  tenementis  is  a  bad  plea."  I  have  sufficiently  treated 
of  this  matter  elsewhere. 

"  A  judgment  for  a  defendant  in  one  personal  action,  is  a  good  bar  to  an- 
other personal  action  for  the  same  cause,  and  is  therefore  a  good  plea.  6 
Co.  7.  But  the  cause  of  action  must  be  specially  stated  to  be  the  same." 
2  Bl.  R.  779.     3  Wils.  240. 

But  the  judgment  must  have  been  upon  the  merits,  or  it  will  be  no  bar; 
for  the  plaintiff  may  bring  a  new  action  where  the  first  has  been  ineffectual 
because  of  some  error  in  the  proceedings. 

The  pendency  of  a  former  action  for  the  same  demand  is  also  a  good 
plea  in  abatement,  but  not  in  bar.     1  Chitty,  443. 

That  the  debt  claimed  by  the  plaintiff  has  been  attached  in  the  defend- 
ant's hands  by  foreign  attachment,  is  a  good  plea.  1  Lord  Ray.  180.  1 
Salk.  291.  If  the  court  (of  chancery)  by  which  the  attachment  was  issued, 
has  proceeded  to  hearing,  and  decreed  a  payment  of  the  money  by  the  de- 
fendant to  the  plaintiff's  attaching  creditor,  the  matter  may  be  pleaded  in 
bar  of  the  action.  1  Salk.  280.  See  6  Ran.  93.  But  where  the  attach- 
ment cause  is  yet  pending  and  undetermined,  it  must  be  pleaded  in  abate- 
ment ;  for  if  the  attachment  be  ultimately  dismissed,  the  plaintiff's  right  to 
sue  will  be  resuscitated.  See  1  Salk.  280.  5  John.  Rep.  102.  Also,  1 
Saun.  67,  a.  n.     3  E.  367,  378.     2  Vez.  jr.  106. 

A  former  recovery  is  also  a  good  bar,  and  may  be  given  in  evidence  un- 
der the  general  issue,  for  it  shows  that  the  plaintiff  had  no  cause  of  action 
when  he  commenced  his  suit,  as  he  had  already  obtained  a  judgment  for  his 
demand.     2  Str.  733.     1  Saun.  92,  n.  2. 

The  plea  of  former  recovery  is  no  bar  if  upon  evidence  it  appears  that 
the  matter  of  the  existing  suit  was  not  in  fact  the  subject  of  inquiry  in  the 
former  suit.     6  T.  R.  607. 

The  test  whether  a  judgment  on  the  merits  in  one  action  shall  bar  anoth- 
er, is,  "the  same  evidence  being  required  in  both  actions."  2  Bl.  Rep. 
827.     3  Wills.  304. 

See,  as  to  the  bar  of  a  former  judgment,  1  Chitty,  195.  3  Wils.  204. 
Bac.  Pleading,  I.  13.     5  Co.  -32,  -33. 

A  release  is  also  a  good  plea  in  assumpsit.  But  where  the  promise  has 
been  broken,  and  a  right  of  action  accrued,  the  release  must  be  by  deed. 
While  the  promise  is  yet  unbroken,  the  plaintiff  may  discharge  the  defend- 
ant from  performance  by  parol.     Ca.  K.  B.  538.     1  Lord  Ray.  ^o. 


160  ASSUMPSIT.  [book  3. 

Arbitrament  and  award  is  a  good  plea.  But  arbitrament  without  award 
is  not  so.     4T.R.  ]46. 

"Alienage  in  the  plaintiff  is  a  good  plea  in  abatement,  but  it  must  be, 
that  he  is  an  alien  enemy ;  for  alien  friends  may  maintain  personal  actions, 
and  it  shall  not  be  presumed  that  he  was  an  enemy."     2  St.  1082. 

Of  set-offs.  A  set-off  may  be  pleaded.  By  our  law,  1  R.  C.  ch.  128, 
§  89,  it  is  provided  that  in  every  action  in  which  a  defendant  shall  desire  to 
prove  a  payment  or  set-off,  he  shall  file  with  his  plea  an  account  stating  dis- 
tinctly the  nature  of  such  payment  or  set-off,  and  the  items  thereof,  and  if 
he  fail  to  do  so,  he  shall  not  give  evidence  of  it  unless  it  be  so  particularly 
described  in  the  plea  as  to  give  the  plaintiff  full  notice  of  the  character 
thereof.  Such  notices  should  be  almost  as  particular  as  declarations — for 
the  set-off  is  a  substitute  for  the  cross  action.    Bull.  179.    1  Sell.  Prac.  329. 

The  subject  of  set-offs  has  been  examined  in  considering  the  plea  of  set- 
off to  an  action  of  debt. 

"  The  last  plea  to  be  considered  is,  that  of  the  general  issue,  which  is  non- 
assumpsit.  Though  where  the  defendant  pleaded  not  guilty,  it  was  held  to 
be  good  after  a  verdict :  yet  if  the  plaintiff  had  dcmi-rrcd,  it  had  been  bad." 
2  Str.  1022. 

"  1.  Under  this  issue  the  defendant  may  go  into  any  equitable  defence  : 
he  may  prove  a  release  without  pleading  it,  and  take  advantage  of  every 
equitaljle  allowance  possible."     2  Bur.  1010. 

"  So  he  can  give  payment  in  evidence  on  the  general  issue,  or  he  may  plead 
it.  For  as  there  is  no  debt,  there  shall  be  presumed  to  be  no  promise." 
Salk.  394. 

"  So  under  the  general  issue  he  can  give  an  usurious  contract  in  evidence  : 
for  the  statute  having  declared  all  such  contracts  absolutely  void,  there  can 
be  no  assumpsit ;"  but  usury  must  be  pleaded  to  an  action  on  a  sealed  in- 
strument. 

"  So  infancy  may  be  given  in  evidence  on  the  general  issue."    2  Lev.  144. 

•'  And,  in  general,  whatever  defeats  the  promise  is  good  evidence  on  non- 
assumpsit." 

And,  therefore,  where  the  plaintiff  sues  upon  a  quantum  meruit,  the  de- 
fendant may  on  the  general  issue,  and  without  notice,  give  evidence  that 
the  work  was  not  worth  what  the  plaintiff  claims,  and  that  he  had  paid  as 
much  as  it  was  worth.  And  though  the  contract  was  that  the  work  should 
be  done  at  a  certain  price,  he  may,  upon  giving  notice,  be  let  into  a  like 
defence.  And  if  the  work  be  wholly  inadequate  for  the  purposes  for  which 
it  was  undertaken  to  be  performed,  he  may  be  let  into  such  defence  even 
without  notice.  7  E.  479.  In  general,  however,  the  circumstance  that  the 
work  and  materials  are  not  as  good  as  were  contracted  for  by  the  plaintiff, 
does  not  form  a  defence.  Norris's  Peake,  406.  2  B.  <fc  P.  136.  See, 
however.  Camp.  N.  P.  38. 

The  verdict  is  in  all  cases  of  assumpsit  found  for  damages  sustained  by 
the  plaintiff  in  consequence  of  the  breach  of  the  promise  of  the  defendant, 
whether  it  was  express  or  implied. 

Where  the  ground  of  the  action  is  not  upon  an  entire  contract,  the  find- 
ing of  the  jury  may  vary  from  the  demand  set  up.  "  For  it  is  a  rule  in  this 
action  that  the  plaintiff  may  recover  less  than  he  croes  for,  but  not  more." 
2  Bur.  906. 

Therefore,  where  the  plaintiff  sues  for  £100  due  by  account,  he  may  re- 
cover only  £50.  If,  on  the  other  hand,  the  verdict  is  for  too  much,  he  may 
release  the  excess.     4  Mun.  -371. 

The  verdict  must  substantially  answer  to  the  issue;  and,  if  it  does  so,  it 
will  not  be  set  aside,  though  irregular  in  form  :  as  where  it  found  that  the 
defendant  had  not  paid  the  debt,  and  the  jury  assessed  the  damages  by  oc- 


CHAP.  9.]  ASSUMPSIT.  161 

casion  of  tlie  non-performance  of  the  assumpsit  at  £\0,  it  was  held  good. 

1  Wash.  380.  The  verdict  is  usually  in  this  form:  "We,  the  jury,  find 
that  the  defendant  did  assume  upon  himself  as  the  plaintiff  in  his  declara- 
tion hath  alleged,  and  we  assess  his  damages  at  $100,"  or,  "  We,  the  jury, 
find  for  the  plaintift'  $100  damages,"  or,  "  We  find  for  the  plaintiff,  and  as- 
sess his  damages  at  $100."  And  where  the  jury  give  interest,  which  they 
may  do  by  our  law,  they  insert  after  the  sum  these  words,  "with  interest 

thereon  at  the  rate  of  six  per  cent,  per  annum  from  the day  of 

till  paid."     See  1  R.  C.  ch.  128,  §  80. 

Where  the  pleas  were,  '^non-assumpsit  and  non-assumpsit  loithin  five 
years,"  and  the  entry  was,  "  which  plea  the  plaintiff  joined,"  and  the  ver- 
dict found,  "that  the  defendant  did  assume  within  five  years,"  the  judg- 
ment was  not  arrested  though  the  issue  was  not  expressly  on  both  pleas.  2 
Call,  514.  A  general  verdict  in  assumpsit  assessing  entire  damages  is  good, 
though  tliere  are  several  counts,  the  counts  being  all  good.     5  Mun.  27. 

2.  ''  Of  the  judgment  and  writ  of  inquiry.  The  jury,  in  their  verdict  upon 
the  issue,  settle  the  quantum  of  the  damages.  But  where  there  is  judg- 
ment by  default,  or  on  demurrer,  or  any  other  interlocutory  judgment,  then 
the  plaintiff^s  right  to  some  damages  is  determined  ;  but  the  express  sum  is 
to  be  settled  in  damages  by  the  intervention  of  a  jury  on  a  writ  of  inquiry, 
upon  which  the  plaintiff  obtains  final  judgment." 

Mere  admission  of  a  sum  due  does  not  dispense  v/ith  proof  of  the  amount 
due.  2  H.  &  M.  401.  Sed  vide  5  Mun.  24.  That  case,  however,  was 
the  case  of  a  demurrer  to  evidence  by  the  defendant,  against  whom  all  fair 
inferences  were  of  course  made  according  to  a  well  established  rule  in  cases 
of  such  demurrer. 

If  the  action  be  on  a  promissory  note,  the  execution  of  it  ought  to  be 
proved  by  the  subscribing  witness,  if  to  be  had,  and  if  not,  the  handwriting 
should  be  proved.  But  in  case  of  judgment  by  default,  this  is  unnecessary, 
for  the  contract  is  by  the  default  admitted.  1  Esp.  170.  So  as  to  a  bill  of 
exchange.     3  Term  Rep.  303. 

Where  by  discounts  and  offsets  the  plaintiff's  claim  is  reduced  below  the 
sum  which  suffices  to  give  jurisdiction  ;  yet  the  plaintiff  will  have  judgment. 

2  Virg.  Ca.  255,  256.  So  where  the  parties  referred  their  suit  to  arbitra- 
tors, and  the  arbitrators  awarded  a  sum  below  the  jurisdiction,  the  plaintiff 
had  judgment,  as  his  declaration  claimed  a  larger  sum  than  was  necessary 
to  give  the  jurisdiction.  Virg.  Ca.  141.  But  though  the  declaration  claim- 
ed ,£85,  yet  the  jury  having  given  a  verdict  for  £10  only,  which  was  below 
the  jurisdiction,  the  judgment  on  the  verdict  was  arrested  because  it  did  not 
appear  that  the  demand  was  reduced  by  offsets.  Virg.  Ca.  131.  Had  this 
appeared,  it  seems  it  would  have  been  otherwise.  So  where  an  assignee 
sued  on  a  note  for  more  than  $100,  the  court  gave  judgment,  though  the 
verdict  was  only  for  $87,  the  residue  having  been  an  offset  against  the  as- 
signor. Ferguson  vs.  Highly,  2  Virg.  Ca.  255.  But  v.'here  the  amount  is 
reduced  below  the  jurisdiction  by  proof  of  payments  to  plaintiff  himself,  the 
court  cannot  give  judgment.  Larrow  vs.  Harding,  2  Virg.  Ca.  203.  In 
the  case  of  an  action  of  debt  on  a  bond,  the  penalty  gives  jurisdiction. 
Seel  Mun.  555.  4  Cranch,  316.  3  Mun.  151,  155.  Heath  rs.  Blackly, 
General  Court,  June,  1820. 

As  to  costs.  Costs  cannot  be  given  against  executors  or  administrators 
who  are  defendants,  payable  out  of  their  own  estates.  Sess.  Acts,  ch.  28, 
§  4.  The  law  was  formerly  otherwise.  At  present  the  judgment  for  costs 
as  well  as  for  the  damages,  is  de  bonis  testatoris.  Where  the  executors  are 
plaintiffs,  they  are  in  like  manner  exempt  from  personal  liability  for  costs, 
unless  the  court  will  certify  that  in  the  prudent  discharge  of  their  official 
duty  they  ought  not  to  have  brought  the  suit.  1  R.  C.  ch.  128,  §  25. 
VOL.  2~2I 


162  ACTIONS  ON  THE  CASE.  [  book  3. 

It  remains,  before  we  proceed  to  tlie  head  of  itijiirics  to  real  property,  to 
present  the  student  with  the  following  sumniiiry  of  Mr.  Blackstone  of  the 
last  class  of  cases  considered  by  him  in  the  light  of  contracts  implied  by 
reason  and  construction  of  law.  And  as  most  of  the  subjects  here  touch- 
ed upon  arc  treated  of  elsewhere  in  these  lectures,  I  shall  not  think  it  ne- 
cessary here  to  offer  any  observation  upon  the  remarks  of  the  commentator. 

6.  "  The  last  class  of  contracts,  implied  by  reason  and  construction  of 
law,  arises  upon  this  supposition,  that  every  one  who  undertakes  any  of- 
fice, employment,  trust,  or  duty,  contracts  with  those  who  employ  or  en- 
trust him,  to  perform  it  with  integrity,  diligence,  and  skill.  And  if  by  his 
want  of  either  of  those  qualities  any  injury  accrues  to  individuals,  they  have 
therefore  their  remedy  in  damages  by  a  special  action  on  the  case.  A  few 
instances  will  fully  illustrate  this  matter.  If  an  officer  of  the  public  is  guil- 
ty of  neglect  of  duty,  or  a  palpable  breach  of  it,  of  non-feasance  or  of  mis- 
feasance ;  as,  if  the  sheriff  does  not  execute  a  writ  sent  to  him,  or  if  he  wil- 
fully makes  a  false  return  thereof;  in  both  these  cases  the  party  aggrieved 
shall  have  an  action  on  the  case,  for  damages  to  be  assessed  by  a  jury.  If 
a  sheriff  or  gaoler  suffers  a  prisoner,  who  is  taken  upon  mesne  process  (that 
is,  during  the  pendency  of  a  suit)  to  escape,  he  is  liable  to  an  action  on  the 
case.  But  if  after  judgment,  a  gaoler  or  a  sheriff  permits  a  debtor  to  es- 
cape, who  is  charged  in  execution  for  a  certain  sum,  the  debt  immediately 
becomes  his  own,  and  he  is  compellable  by  action  of  debt,  being  for  a  sum 
liquidated  and  ascertained,  to  satisfy  the  creditor  his  whole  demand:  which 
doctrine  is  grounded  on  the  equity  of  the  statutes  of  Westm.  2.  13  Edw.  c. 
11,  and  1  Ric.  II.  c.  12.  An  advocate  or  attorney  that  betray  the  cause 
of  their  client,  or,  being  retained,  neglect  to  appear  at  the  trial,  by  which 
the  cause  miscarries,  are  liable  to  an  action  on  the  case,  for  a  reparation  to 
their  injured  client.  There  is  also  in  law  always  an  implied  contract  with 
a  common  inn-keeper,  to  secure  his  guest's  goods  in  his  inn  ;  with  a  com- 
mon carrier  or  bargemaster,  to  be  answerable  for  the  goods  he  carries  ;  with 
a  common  farrier,  that  he  shoes  a  horse  well,  without  laming  him;  with  a 
common  tailor,  or  other  workman,  that  he  performs  his  business  in  a  work- 
manlike manner  ;  in  which,  if  they  fail,  an  action  on  the  case  lies  to  recover 
damages  for  such  breach  of  their  general  undertaking.  But  if  I  employ  a 
person  to  transact  any  of  these  concerns,  whose  common  profession  and 
business  it  is  not,  the  law  implies  no  such  general  undertaking;  but,  in  or- 
der to  charge  him  with  damages,  a  special  agreement  is  required.  Also,  if 
an  inn-keeper,  or  other  victualler,  hangs  out  a  sign  and  opens  his  house 
for  travellers,  it  is  an  implied  engagement  to  entertain  all  persons  who  tra- 
vel that  way  ;  and  upon  this  universal  assumpsit  an  action  on  the  case  will 
lie  against  him  for  damages,  if  he  without  good  reason  refuses  to  admit  a 
traveller.  If  any  one  cheats  me  with  false  cards  or  dice,  or  by  false  weights 
and  measures,  or  by  selling  me  one  commodity  for  another,  an  action  on 
the  case  also  lies  against  him  for  damages,  upon  the  contract  which  the 
law  always  implies,  that  every  transaction  is  fair  and  honest.  In  contracts 
likewise  for  sales,  it  is  constantly  understood  that  the  seller  undertakes  that 
the  commodity  he  sells  is  his  own ;  and  if  it  proves  otherwise  an  action  on 
the  case  lies  against  him,  to  exact  damages  for  this  deceit.  In  contracts 
for  provisions  it  is  always  implied  that  they  are  wholesome  ;  and,  if  they 
be  not,  the  same  remedy  may  be  had.  Also  if  he  that  selleth  any  thing 
doth,  upon  the  sale,  warrant  it  to  be  good,  the  law  annexes  a  tacit  contract 
to  this  warranty,  that  if  it  be  not  so,  he  shall  make  compensation  to  the 
buyer;  else  it  is  an  injury  to  good  faith,  for  which  an  action  on  the  case 
will  he  to  recover  damages.  The  warranty  must  be  upon  (he  sale;  for  if  it 
be  made  after,  and  not  at  the  time  of  the  sale,  it  is  a  void  warranty  :  for  it 
is  then  made  wilhcut  any  consideration  ;  neither  docs  the  buyer  then  take 


CHAP.  10,]  OUSTER  OF  THE  FIlEEII0Ll7i  163 

the  goods  upon  the  credit  of  the  vendor.  Also  the  warranty  can  only  reach 
to  things  in  being  at  the  time  of  the  warranty  made,  and  not  to  things  in 
futuro  :  as,  that  a  horse  is  sound  at  the  buying  of  him  ;  not  that  he  will  be 
sound  in  two  years  hence.  But  if  the  vendor  knew  the  goods  to  be  un- 
sound, and  hath  used  any  art  to  disguise  them,  or  if  they  are  in  any  shape 
different  from  what  he  represents  them  to  be  to  the  buyer,  this  artifice  shall 
be  equivalent  to  an  express  warranty,  and  the  vendor  is  answerable  for  their 
goodness.  A  general  warranty  will  not  extend  to  guard  against  defects 
that  are  plainly  and  obviously  the  object  of  one's  senses,  as  if  a  horse  be 
warranted  perfect,  and  wants  either  a  tail  or  an  ear,  unless  the  buyer  in  this 
case  be  blind.  But  if  cloth  is  warranted  to  be  of  such  a  length,  when  it  is 
not,  there  an  action  on  the  case  lies  for  damnges ;  for  that  cannot  be  dis- 
cerned by  sight,  but  only  by  a  collateral  proof,  the  measuring  it.  Also  if  a 
horse  is  warranted  sound,  and  he  wants  the  sight  of  an  eye,  though  this 
seems  to  be  the  object  of  one's  senses,  yet  as  the  discernment  of  such  de- 
fects is  frequently  matter  of  skill,  it  hath  been  held  that  an  action  on  the 
case  lieth,  to  recover  damages  for  this  imposition, 

"  Besides  the  special  action  on  the  case,  there  is  also  a  peculiar  remedy^ 
entitled  an  action  of  deceit,  to  give  damages  in  some  particular  cases  of 
fraud;  and  principally  where  one  man  does  any  thing  in  the  name  of  ano- 
ther, by  which  he  is  deceived  or  injured  ;  as  if  one  brings  an  action  in  an- 
other's name,  and  then  suffers  a  non-suit,  whereby  tlie  plaintiff  becomes 
liable  to  costs  :  or  where  one  obtains  or  suffers  a  fraudulent  recovery  of 
lands,  tenements,  or  chattels,  to  the  prejudice  of  him  that  hath  right.  As 
when  by  collusion  the  attorney  of  the  tenant  makes  default  in  a  real  ac- 
tion, or  where  the  sheriff  returns  that  the  tenant  was  summoned  when  he 
was  not  so,  and  in  either  case  he  loses  the  land,  the  writ  of  deceit  lies 
against  the  demandant,  and  also  the  attorney  or  the  sheriff  and  his  officers, 
to  annul  the  former  proceedings  and  recover  back  the  land.  It  also  lies 
in  the  cases  of  warranty  before  mentioned,  and  other  personal  injuries 
committed  contrary  to  good  faith  and  honesty.  But  an  action  on  the  case, 
for  damages,  in  nature  of  a  writ  of  deceit,  is  more  usually  brought  upon 
these  occasions.  And  indeed  it  is  the  only  remedy  for  a  lord  of  a  manor, 
in  or  out  of  ancient  demesne,  to  reverse  a  fine  or  recovery  had  in  the  king's 
courts  of  lands  lying  within  his  jurisdiction ;  which  would  otherwise  be 
thereby  turned  into  frank  fee.  And  this  may  be  brought  by  the  lord  against 
the  parties  and  cesluy  que  use  of  such  fine  or  recovery  ;  and  thereby  he  shall 
obtain  judgment  not  only  for  damages  (which  are  usually  remitted)  but  also 
to  recover  his  court  and  jurisdiction  over  the  lands,  and  to  annul  the  for- 
mer proceedings. 

"Thus  much  for  the  non-performance  of  contracts,  express  or  implied  ; 
which  includes  every  possible  ijijury  to  what  is  by  far  the  most  considerable 
species  of  personal  property,  viz.,  that  which  consists  in  action  merely, 
and  not  in  possession.  Which  finishes  our  inquiries  into  such  wrongs  as 
may  be  offered  to  personal  property,  with  their  several  remedies  by  suit  or 
action." 


CHAPTER  X. 

OF  INJURIES  TO  REAL  PROPERTY;  AND,  FIRST,  OF  DISPOSSESSION  OR  OUS- 
TER OF  THE  FREEHOLD. 

"  I  come  now  to  consider  such  injuries  as  affect  that  species  of  properly 
which  the  laws  of  England  have  denominated  real ;  as  being  of  a  more  sub- 
stantial and  permanent  nature,  than  those  transitory  rights  of  which  per- 
sonal chattels  are  the  object. 


164  OUSTER  OF  THE  FIlEEnOLI>.  [  book  3. 

"  Real  injuries  then,  or  injuries  affecting  real  rights,  arc  principally  five: 
1.  Ouster;  2.  Trespass;  3.  Nuisance;  4.  Waste;  5.  Disturbance. 

"  Ouster,  or  dispossession,  is  a  wrong  or  injury  that  carries  with  it  the 
amotion  of  possession :  for  thereby  the  wrongdoer  gets  into  the  actual  oc- 
cupation of  the  land  or  hereditament,  and  obliges  him  that  hath  a  right  to 
seek  his  legal  remedy,  in  order  to  gain  possession,  and  damages  for  the  ii.- 
jury  sustained.  And  such  ouster,  or  dispossession,  may  either  be  of  the 
freehold,  or  of  chattels  real.  Ouster  of  the  freehold  is  effected  by  one  of  the 
following  methods:  1.  Abatement;  2.  Intrusion;  3.  Disseisin;  4.  Dis- 
continuance ;  5.  Deforcement.  All  of  which  in  their  order,  and  afterwards 
iheir  respective  remedies,  will  be  considered  in  the  present  chapter. 

"  1.  And  first,  an  abatement  is  where  a  person  dies  seised  of  an  inheri- 
tance and  before  the  heir  or  devisee  enters,  a  stranger  who  has  no  right 
makes  entry,  and  gets  possession  of  the  freehold  :  this  entry  of  him  is  call- 
ed an  abatement,  and  he  himself  is  denominated  an  abator.  It  is  to  be 
observed  that  this  expression,  of  abating,  which  is  derived  from  the  French, 
and  signifies  to  quash,  beat  down,  or  destroy,  is  used  by  our  law  in  three 
senses.  The  first,  which  seems  to  be  the  primitive  sense,  is  that  of  abating 
or  beating  down  a  nuisance,  of  which  we  spoke  in  the  beginning  of  this 
book ;  and  in  a  like  sense  it  is  used  in  statute  Westm.  1.  3  Edw.  I.  c.  17, 
where  mention  is  made  of  abating  a  castle  or  fortress  :  in  vv'hich  case  it 
clearly  signifies  to  pull  it  down,  and  level  it  with  the  ground.  The  second 
signification  of  abatement  is  that  of  abating  a  writ  or  action,  of  which  we 
shall  say  more  hereafter  :  here  it  is  taken  figuratively,  and  signifies  the  over- 
throw or  defeating  of  such  v/rit,  by  some  fatal  exception  to  it.  The  last 
species  of  abatement  is  that  we  have  now  before  us ;  which  is  also  a  figu- 
rative expression  to  denote  that  the  rightful  possession  or  freehold  of  the 
heir  or  devisee  is  overthrown  by  the  rude  intervention  of  a  stranger. 

"This  abatement  of  a  freehold  is  somewhat  similar  to  an  immediate  oc- 
cupancy in  a  state  of  nature,  which  is  effected  by  taking  ])ossession  of  the 
land  the  same  instant  that  the  prior  occupant  by  his  death  relinquishes  it. 
But  this,  however  agreeable  to  natural  justice,  considering  man  merely  as 
an  individual,  is  diametrically  opposite  to  the  law  of  society,  and  particular- 
ly the  law  of  England ;  which,  for  the  preservation  of  public  peace,  hath 
prohibited  as  far  as  possible  all  acquisitions  by  mere  occupancy :  and  hath 
directed  that  lands,  on  the  death  of  the  present  possessor,  should  immedi- 
ately vest  either  in  some  person,  expressly  named  and  appointed  by  the  de- 
ceased, as  his  devisee  ;  or,  in  default  of  such  appointment,  in  such  of  his 
next  relations  as  the  law  hath  selected  and  pointed  out  as  his  natural  repre- 
sentative or  heir.  Every  entry  therefore  of  a  mere  stranger  by  way  of  in- 
tervention between  the  ancestor  and  heir  or  person  next  entitled,  which 
keeps  the  heir  or  devisee  out  of  possession,  is  one  of  the  highest  injuries  to 
the  right  of  real  property. 

"2.  The  second  species  of  injury  by  ouster,  or  amotion  of  possession 
from  the  freehold,  is  by  intrasicn :  which  is  the  entry  of  a  stranger,  after  a 
particular  estate  of  freehold  is  determined,  before  him  in  remainder  or  re- 
version. And  it  happens  where  a  tenant  for  term  of  life  dieth  seised  of  cer- 
tain lands  and  tenements,  and  a  stranger  entcrelh  thereon,  after  such  death 
of  the  tenant,  and  before  any  entry  of  Jiini  in  remainder  or  reversion.  This 
entry  and  interposition  of  the  stranger  differ  from  an  abatement  in  this ; 
that  an  abatement  is  always  to  the  prejudice  of  the  heir,  or  immediate  de- 
visee; an  intrusion  is  always  to  the  prejudice  of  him  in  remainder  or  rever- 
sion. For  example  :  if  A  dies  seised  of  lands  in  fee -simple,  and  before  the 
entry  of  B  his  heir,  C  enters  theroon,  this  is  an  abatement;  but  if  A  be  ten- 
ant for  life,  with  ronuundcr  to  B  in  fee-simple,  and  after  the  death  of  A,  C 
enters,  this  is  an  intrusion.     Also,  il  A  be  tenant  for  life  on  lease  from  B, 


CJIAP.  10.]  OUSTER  OF  THE  FREEHOLD.  1G5 

or  his  ancestors,  or  be  tenant  by  the  curtesy,  or  in  dower,  the  reversion  be 
ing  vested  in  B  ;  and  after  the  death  of  A,  C  enters  and  keeps  B  out  of 
possession,  this  is  likewise  an  intrusion.  So  that  an  intrusion  is  always  im- 
mediately consequent  upon  the  determination  of  a  particular  estate;  an 
abatement  is  always  consequent  upon  the  descent  or  devise  of  an  estate  in 
fee-simple.  And  in  either  case  the  injury  is  equally  great  to  him  whose 
possession  is  defeated  by  this  unlawful  occupancy. 

"  3.  The  third  species  of  injury  by  ouster,  or  privation  of  the  freehold, 
is  by  disseisin.  Disseisin  is  a  wrongful  putting  out  of  him  that  is  seised  of 
the  freehold.  The  two  former  species  of  injury  were  by  a  wrongful  entry 
where  the  possession  was  vacant:  but  this  is  an  attack  upon  him  who  is  in 
actual  possession,  and  turning  him  out  of  it.  Those  were  an  ouster  from  a 
freehold  in  law  :  this  is  an  ouster  from  a  freehold  in  deed.  Disseisin  may 
be  effected  either  in  corporeal  inheritances,  or  incorporeal.  Disseisin  of 
things  corporeal,  as  of  houses,  lands,  &c.  must  be  by  entry  and  actual  dis- 
possession of  the  freehold ;  as  if  a  man  enters  either  by  force  or  fraud  into 
the  house  of  another,  and  turns,  or  at  least  keeps,  him  or  his  servants  out 
of  possession.  Disseisin  of  incorporeal  hereditaments  cannot  be  an  actual 
dispossession  :  for  the  subject  itself  is  neither  capable  of  actual  bodily  pos- 
session, nor  dispossession:  but  it  depends  on  their  respective  natures,  and 
various  kinds :  being  in  general  nothing  more  than  a  disturbance  of  the 
owner  in  the  means  of  coming  at,  or  enjoying  them.  With  regard  to  free- 
hold rent  in  particular,  our  ancient  law-books  mentioned  five  methods  of 
working  a  disseisin  thereof:  1.  By  enclosure  ;  where  the  tenant  so  enclos- 
eth  the  house  or  land,  that  the  lord  cannot  come  to  distrein  thereon,  or  de- 
mand it :  2.  By  foreslaller,  or  lying  in  wait ;  when  the  tenant  besettelh  the 
way  with  force  and  arms,  or  by  menaces  of  bodily  hurt,  affrights  the  lessor 
from  coming:  3.  By  rescous  ;  that  is,  either  by  violently  retaking  a  distress 
taken,  or  by  preventing  the  lord  with  force  and  arms  from  taking  any  at  all: 
4.  By  replevin  ;  when  the  tenant  replevies  the  distress  at  such  time  when 
his  rent  is  really  due  :  5.  By  denial;  which  is  when  the  rent  being  lawfully 
demanded  is  not  paid.  All  or  any  of  these  circumstances  amount  to  a  dis- 
seisin of  rent ;  that  is,  they  wrongfully  put  the  owner  out  of  the  only  pos- 
session, of  which  the  subject-matter  is  capable,  namely,  the  receipt  of  it. 
But  all  these  disseisins,  of  heraditaments  incorporeal,  are  onjy  so  at  the 
election  and  choice  of  the  party  injured  ;  if,  for  the  sake  of  more  easily  try- 
ing the  right,  he  is  pleased  to  suppose  himself  disseised.  Otherwise,  as 
there  can  be  no  actual  dispossession,  he  cannot  be  compulsively  disseised 
of  any  incorporeal  hereditament. 

"  And  soo,  too,  even  of  corporeal  hereditaments,  a  man  may  frequently 
suppose  himself  to  be  disseised,  when  he  is  not  so  in  fact,  for  the  sake  of  en- 
titling himself  to  the  more  easy  and  commodious  remedy  of  an  assise  of 
novel  disseisin,  instead  of  being  driven  to  the  more  tedious  process  of  a  writ 
of  entry." 

To  constitute  a  disseisin,  there  must  be  a  complete  ouster  from  the  free- 
hold ;  and,  if  a  person  comes  into  possession  lawfully,  his  or  his  heirs'  sub- 
sequent unlawful  continuance  in  possession  will  not  operate  as  a  d  isseisin, 
or  bar  the  owner's  power  of  entry,  or  devising  his  right  of  entry.  "But 
when  the  remedy  by  assise  was  introduced  under  Henry  II.  to  redress  such 
disseisins  as  had  been  committed  within  a  few  years  next  preceding,  the 
facility  of  that  remedy  induced  others,  who  were  wrongfully  kept  out  of 
the  freehold,  to  feign  or  allow  themselves  to  be  disseised,  merely  for  the 
sake  of  the  remedy."  This  fiction  was  allowed  by  the  courts  in  behalf  of 
the  person  kept  out  of  possession,  and  hence  originally  sprung  the  distinc- 
tion in  the  books  between  actual  disseisin  and  disseisin  by  election.  See 
Co.  Litt.  239,  a.  n.  1.     1  Burr.  CO,  111.    5  Cruise,  371. 


166  OUSTER  OF  THE  FREEHOLD.  [  BOOK  3. 

"  These  three  species  of  injury,  abatement,  intrusion,  and  disseisin,  arc 
such  wherein  the  entry  of"  the  tenant  ab  initio,  as  well  as  the  continuance 
of  his  possession  afterwards,  is  unlawful.  But  the  two  remaining  species 
are  where  the  entry  of  the  tenant  was  at  first  lawful,  but  the  wrong  con- 
sists in  the  detaining  of  possession  afterwards. 

"  4.  Such  is,  fourthly,  the  injury  of  discontinuance :  which  happens  in 
England  when  a  tenant  in  tail  claims  a  greater  estate  than  he  can  lawfully 
alien,  in  which  case  it  is  good  so  far  as  his  power  extends,  but  no  farther ; 
except  that  after  his  death  the  heir  in  tail  cannot  enter,  but  is  put  to  his 
action.  So,  by  common  law,  where  a  husband  seised  in  right  of  his  wife, 
aliened  her  estate  in  fee,  this  worked  a  discontinuance,  and  the  wife  was 
put  to  her  action  ;  for,  in  these  cases,  the  alienation  having  been  made  by 
one  having  a  good  estate  in  the  premises,  and  the  alienee  coming  lawfully 
into  possession,  the  law  would  not  permit  that  possession  to  be  divested  by 
entry,  but  put  the  party  to  his  action,  that  the  right  might  be  fairly  tried. 
Now  the  term  discontinuance  is  used  to  distinguish  those  cases  where  the 
party  (who  is  ousted  of  his  freehold  by  the  alienation  of  one  having  a  par- 
tial estate  or  interest  in  the  premises)  cannot  enter,  but  is  driven  to  his  ac- 
tion in  order  to  regain  his  possession.  In  Virginia,  the  doctrine  is  perhaps 
obsolete,  tenancies  in  tail  being  abolished,  wrongful  alienations  being  inhi- 
bited, and  the  law  having  enacted  that  the  alienation  of  the  husband  shall 
work  no  discontinuance  of  the  right  of  the  wife,  but  that  she  may  enter  and 
repossess  herself  without  the  necessity  of  an  action.     1  R.  C.  ch.  129,  §  5. 

"  5.  The  fifth  and  last  species  of  injuries  by  ouster  and  privation  of  the 
freehold,  where  the  entry  of  the  present  tenant  or  possessor  was  originally 
lawful,  but  his  detainer  is  now  become  unlawful,  is  that  by  deforcement. 
This,  in  its  most  extensive  sense,  is  nomen  generalissimum  ;  a  much  largcf 
and  more  comprehensive  expression  than  any  of  the  former;  it  then  sig- 
nifying the  holding  of  any  lauds  or  tenements  to  which  another  person  hath 
a  right.  So  that  this  includes  as  well  an  abatement,  an  intrusion,  a  dissei- 
sin, or  a  discontinuance,  as  any  other  species  of  wrong  whatsoever,  where- 
by he  that  hath  right  to  the  freehold  is  kept  out  of  possession.  But,  as 
contradistinguished  from  the  former,  it  is  only  such  a  detainer  of  the  free- 
hold, from  him  tlsat  hath  the  right  of  property,  but  never  had  any  posses- 
sion under  that  right,  as  falls  within  none  of  the  injuries  which  we  have  be- 
fore explained.  As  if  a  man  marries  a  woman,  and  during  the  coverture  is 
seized  of  lands,  and  alienes,  and  dies;  is  disseised,  and  dies  ;  or  dies  in 
possession  ;  and  the  alienee,  disseisor,  or  heir  enters  on  the  tenements  and 
doth  not  assign  the  widow  her  dower ;  this  is  a  deforcement  to  the  widow, 
by  withholding  lands  to  which  she  hath  a  right.  In  like  manner,  if  a  man 
lease  lands  to  another  for  term  of  years,  or  for  the  life  of  a  third  person, 
and  the  term  expires  by  surrender,  efflux  of  time,  or  death  of  the  cestuy  que 
vie,  and  the  lessee,  or  any  stranger,  who  was  at  the  expiration  of  the  term 
in  possession,  holds  over,  and  refuses  to  deliver  the  possession  to  him  in 
remainder  or  reversion,  this  is  likewise  a  deforcement.  Deforcements  may 
also  arise  upon  the  breach  of  a  condition  in  law  :  as  if  a  woman  gives  lands 
to  a  man  by  deed,  to  the  intent  that  he  marry  her,  and  he  will  not  when 
thereunto  required,  but  continues  to  hold  the  lands:  this  is  such  a  fraud  on 
the  man's  part,  that  the  law  will  not  allow  it  to  devest  the  woman's  right 
of  possession ;  though,  his  entry  being  lawful,  it  does  devest  the  actual 
possession,  and  tlicr(;by  becomes  a  deforcement.  Deforcements  may  also 
he  grounded  on  the  disability  of  the  parly  deforced:  as  if  an  infant  do 
make  an  alienation  of  his  lands,  and  the  alienee  enters  and  keeps  posses- 
sion ;  now,  as  the  alienation  is  voidable,  this  possession  as  against  the  in- 
fant (or,  in  case  of  his  decease,  as  against  his  heir,)  is  after  avoidance 
wrongful,  and  t'hcrcforc  a  deforcement.     The  same  happens  when  one  of 


CHAP.  10.]  REMEDY  BY  ENTRY.  167 

nonsane  memory  alicnes  his  lands  or  tenements,  and  the  alienee  enters 
and  holds  possession  ;  this  may  also  be  a  deforcement.  Another  species 
of  deforcement  is.  where  two  persons  have  the  same  title  to  land,  and  one 
of  them  enters  and  keeps  possession  against  the  other ;  as  where  the  an- 
cestor dies  seised  of  an  estate  in  fee-simple,  which  descends  to  two  sisters 
as  coparceners,  and  one  of  them  enters  before  the  other,  and  will  not  suffer 
her  sister  to  enter  and  enjoy  her  moiety ;  this  is  also  a  deforcement.  De- 
forcement may  also  be  grounded  on  the  non-performance  of  a  covenant 
real:  as  if  a  man,  seised  of  lands,  covenants  to  convey  them  to  another, 
and  neglects  or  refuses  so  to  do,  but  continues  possession  against  him  ;  this 
possession,  being  wrongful,  is  a  deforcement,"  and  the  common  law  gave 
a  remedy  by  action  for  the  breach  of  covenant,  in  which  the  plaintiff  reco- 
vered the  land.  And  from  this  action  has  sprung  the  mode  of  conveyance 
by  fine,  heretofore  mentioned.  "  Lastly,  by  way  of  analogy,  keeping  a  man 
by  any  means  out  of  a  freehold  office,  is  construed  to  be  a  deforcement ; 
though,. being  an  incorporeal  hereditament,  the  deforciant  has  no  corporeal 
possession.  So  that  whatever  injury  (withholding  the  possession  of  a  free- 
hold) is  not  included  under  one  of  the  four  former  heads,  is  comprised  un- 
der this  of  deforcement. 

"  The  several  species  and  degrees  of  injury  by  ouster  being  thus  ascer- 
tained and  defined,  the  next  consideration  is  the  remedy  ;  which  is,  uni- 
versally, the  restitution  or  delivery  of  possession  to  the  right  owner:  and,  in 
some  cases,  damages  also  for  the  unjust  amotion.  The  methods  whereby 
these  remedies,  or  either  of  them,  may  be  obtained,  are  various. 

"I.  The  first  is  that  extrajudicial  and  summary  one,  which  we  slightly 
touched  in  the  first  chapter  of  the  present  book,  of  entry  by  the  legal  own- 
er, when  another  person,  who  hath  no  right,  hath  previously  taken  posses- 
sion of  lands  or  tenements.  In  this  case  the  party  entitled  may  make  a 
formal,  but  peaceable,  entry  thereon,  declaring  that  thereby  he  takes  pos- 
session ;  which  notorious  act  of  ownership  is  eqaivalentto  a  feodal  investi- 
ture by  the  lord  ;  or  he  may  enter  on  any  part  of  it  in  the  same  county,  de- 
claring it  to  be  in  the  name  of  the  whole  :  but  if  it  lies  in  different  coun- 
ties he  must  make  different  entries  ;  for  the  notoriety  of  such  entry  or 
claim  to  the  pares  or  freeholders  of  Westmoreland,  is  not  any  notoriety  to 
the  pares  or  freeholders  of  Sussex.  Also,  if  there  be  two  disseisors,  the 
party  disseised  must  make  his  entry  on  both  :  or  if  one  disseisor  has  con- 
veyed the  lands  with  livery  to  two  distinct  feoffees,  entry  must  be  made  on 
both :  for  as  their  seisin  is  distinct,  so  also  must  be  the  act  which  divests 
that  seisin.  If  the  claimant  be  deterred  from  entering  by  menaces  or  bo- 
dily fear,  he  may  make  claim  as  near  to  the  estate  as  he  can,  with  the  like 
forms  and  solemnities  :  which  claim  is  in  force  for  only  a  year  and  a  day. 
And  this  claim,  if  it  be  repeated  once  in  the  space  of  every  year  and  a  day, 
(which  is  called  continual  claim,)  has  the  sartic  effect  with,  and  in  all  re- 
spects amounts  to,  a  legal  entry.  Such  an  entry  gives  a  man  seisin,  or  puts 
into  immediate  possession  him  that  hath  right  of  entry  on  the  estate,  and 
thereby  makes  him  complete  owner,  and  capable  of  conveying  it  from  him- 
self by  either  descent  or  purchase. 

"  This  remedy  by  entry  takes  place  in  three  only  of  the  five  species  of 
ouster,  viz.,  abatement,  intrusion,  and  disseisin  ;  for,  as  in  these  the  origi- 
nal entry  of  the  wrongdoer  was  unlawful,  they  may  therefore  be  remedied 
by  the  mere  entry  of  him  who  hath  right.  But,  upon  a  discontinuance  or 
deforcement,  the  owner  of  the  estate  cannot  enter,  but  is  driven  to  his  ac- 
tion ;  for  herein,  the  original  entry  being  lawful,  and  thereby  an  apparent 
sight  of  possession  being  gained,  the  law  will  not  suffer  that  right  to  be 
overthrown  by  the  mere  act  or  entry  of  the  claimant.  Yet  a  man  may  en- 
ter on  his  tenant  by  sufferance  :  for  such  tenant  hath  no  freehold;  but  only 


168  REMEDY  BY  ENTRY.  [  BOOK  3. 

a  bare  possession,  which  may  be  defeated,  like  a  tenancy  at  will,  by  the 
mere  entry  of  the  owner.  But  if  the  owner  thinks  it  more  expedient  to 
suppose  or  admit  himself  to  be  disseised  and  his  tenant  to  have  gained  a 
tortious  freehold,  he  is  then  remediable  by  action. 

"  On  the  other  hand,  in  the  case  of  abatement,  intrusion,  or  disseisin, 
where  entries  are  generally  lawful,  this  right  of  entry  may  be  tolled,  that 
is,  taken  away  by  descent.  Descents,  which  take  away  entries,  are  when 
any  one,  seised  by  any  means  whatsoever  of  the  inheritance  of  a  corporeal 
hereditament,  dies  ;  whereby  the  same  descends  to  his  heir :  in  this  case, 
however  feeble  the  right  of  the  ancestor  might  be,  the  entry  of  any  other 
person  who  claims  title  to  the  freehold  is  taken  away ;  and  he  cannot  re- 
cover possession  against  the  heir  by  this  summary  method,  but  is  driven  to 
his  action  to  gain  a  legal  seisin  of  the  estate.  And  this,  first,  because  the 
heir  comes  to  the  estate  by  act  of  law,  and  not  by  his  own  act ;  the  law 
therefore  protects  his  title,  and  will  not  suffer  his  possession  to  be  devested, 
till  the  claimant  hath  proved  a  better  right.  Secondly,  because  the  heir 
may  not  suddenly  know  the  true  state  of  his  title  ;  and  therefore  the  law, 
which  is  ever  indulgent  to  heirs,  takes  away  the  entry  of  such  claimant  as 
neglected  to  enter  on  the  ancestor,  who  was  well  able  to  defend  his  title  ; 
and  leaves  the  claimant  only  the  remedy  of  an  action  against  the  heir. 
Thirdly,  this  was  admirably  adapted  to  the  military  spirit  of  the  feodal  ten- 
ures, and  tended  to  make  the  feudatory  bold  in  war :  since  his  children 
could  not,  by  any  mere  entry  of  another,  be  dispossessed  of  lands  whereof 
he  died  seised.  And,  lastly,  it  is  agreeable  to  the  dictates  of  reason  and 
the  general  principles  of  law. 

"  For,  in  every  complete  title  to  lands,  there  are  two  things  necessary ; 
the  possession  or  seisin,  and  the  right  or  property  therein  :  or,  as  it  is  ex- 
pressed in  Fleta,  juris  et  seisinae  conjimclio.  Now,  if  the  possession  be 
severed  from  the  property,  if  A  has  the  jus  proprietatis,  and  B  by  some 
unlawful  means  has  gained  possession  of  the  lands,  this  is  an  injury  to  A ; 
for  which  the  law  gives  a  remedy,  by  putting  him  in  possession,  but  does  it 
by  different  means  according  to  the  circumstances  of  the  case.  Thus,  as 
B,  who  was  himself  the  wrongdoer,  and  hath  obtained  the  possession  by 
either  fraud  or  force,  hath  only  a  bare  or  naked  possession,  without  any  sha- 
dow of  right ;  A  therefore,  who  hath  both  the  right  of  property  and  the 
right  of  possession,  may  put  an  end  to  his  title  at  once,  by  the  summary 
method  of  entrjj.  13ut,  if  B  the  wrongdoer  dies  seised  of  the  lands,  then 
B's  heir  advances  one  step  farther  towards  a  good  title :  he  hath  not  only 
a  bare  possession,  but  also  an  apparent  jus  possessionis  or  right  of  posses- 
sion. For  the  law  presumes,  that  the  possession  which  i^  transmitted  from 
the  ancestor  to  the  heir,  is  a  rightful  possession,  until  the  contrary  be  shewn  : 
and  therefore  the  mere  entry  of  A  is  not  allowed  to  evict  the  heir  of  B  ; 
but  A  is  driven  to  his  action  at  law  to  remove  the  possession  of  the  heir, 
though  his  entry  alone  would  have  dispossessed  the  ancestor. 

"So  that,  in  general,  it  appears  that  no  man  can  recover  possession  by 
mere  entry  on  lands,  which  another  hath  by  descent.  Yet  this  rule  hath 
some  exceptions  wherein  those  reasons  cease,  upon  which  the  general  doc- 
trine is  grounded ;  especially  if  the  claimant  were  under  any  legal  disabili- 
ties, during  the  life  of  the  ancestor,  either  of  infancy,  coverture,  imprison- 
ment, insanity,  or  being  out  of  the  realm :  in  all  which  cases  there  is  no 
neglect  or  laches  in  the  claimant,  and  therefore  no  descent  shall  bar,  or  take 
away  his  entry.  And  this  title  of  taking  away  entries  by  descent,  is  still 
farther  narrowed  by  stat.  32,  H.  8,  ch.  33,  [from  which  we  have  taken  our 
statute  1  R.  C.  120,  §  4.]  This  act  provides  that  if  any  person  disseises 
or  turns  another  out  of  possession,  no  descent  to  the  heir  of  the  disseisor 
shall  take  away  the  entry  of  him  that  has  a  right  to  the  land,  unless  the  dis- 


CHAP.  10.]  REMEDY  BY  ENTKY.  IGD 

scisor  had  pdacoablc  possession  five  years  next  after  llic  disseisin.  But  the 
statute  e^ttendeth  not  to  any  fooftec  or  donee  ol"  the  disseisor,  mediate  or 
immediate:  because  he  comes  in  peaceably  and  not  by  wronc^;  sucli  a  one 
by  the  genuine  feodal  constitutions  always  came  into  the  tenure  Golemnly 
and  with  the  lord's  concurrence  by  actual  delivery  of  seisin,  that  is,  open 
and  public  investiture.  On  the  other  hand,  it  is  enacted  by  the  statute  of 
limitations,  21  Jac.  I.  c.  16,  [1  R.  C.  ch.  128,  §  1,]  that  no  entry  shall  be 
made  by  any  man  upon  lands,  unless  within  twenty  years  [now  fifteen 
years  by  act  of  1830,  ch.  30,}  after  his  right  shall  accrue,"  And  hence  it 
is  that  no  ejectment  will  lie  after  the  expiration  of  twenty  years  next  after 
the  right  or  title  of  entry  accrued,  the  reason  of  which  will  be  hcrcnfier  ex- 
plained.  The  student  will  see  the  doctrine  ns  to  descents  cast  explained  in 
Adams  on  Ejectment,  41  to  45;  and  see  H.  Chitty  on  Descents,  25,  Ao, 
56;  Taylor  vs.  Horde,  1  Burr.  60;  12  East,  141;  and  Watkins  on  De- 
scents ;  Com.  Dig.  Descents  ;  Bac.  Ab.  Descents.  It  is  scarcely  possible, 
it  is  said,  to  suggest  a  case  in  which  the  doctrine  of  descent  cast  can  be 
now  so  applied,  as  to  prevent  a  claimant  from  maintaining  ejectment. 
Adams,  41,  note  e.  It  has  been  said,  that  where  the  entry  of  the  party  or 
his  ancestor  was  originally  lawful,  and  like  continuance  in  po^ession  only 
unlawful,  the  entry  is  not  tolled.  2  Dowl.  &  R.  41.  Hence  even  the  dy- 
ing seised  of  the  feoffee  or  donee  of  the  disseisor  would  not  seem  to  bar 
the  right  of  entry.  Yet,  I  should  presume,  cases  may  well  arise  where  the 
doctrine  of  the  right  of  entry  being  tolled  by  descent  might  have  strict  ap" 
plication. 

"  In  case  of  deforcement,  where  the  deforciant  had  originally  a  lawful 
possession  of  the  land,  but  now  detains  it  wrongfully,  he  still  continues  to 
nave  the  presumptive  prima  facie  evidence  of  right ;  that  is,  possessiori 
lawfully  gained.  Which  possession  shall  not  be  overturned  by  the  mere 
entry  of  another ;  but  only  by  the  defendant's  shewing  a  better  right  in  a 
course  of  law. 

"  This  remedy  by  entry  must  be  pursued,  [according  to  statute  1  R.  Ci 
ch.  115,  §  1,]  in  a  peaceable  and  easy  manner  ;  and  not  with  force  or  strong- 
hand.  For,  if  one  turns  or  keeps  another  out  of  possession  forcibly,  this* 
is  an  injury  of  both  a  civil  and  criminal  nature.  The  civil  is  remedied  by 
immediate  restitution  ;  which  puts  the  ancient  possessor  in  statu  quo:  the 
criminal  injury,  or  public  wrong,  by  breach  of  the  king's  peace,  is  punish-* 
cd  by  tine  to  the  king.  For  by'the  statute  8  Hen.  VI.,  c.  9,  upon  complaint 
made  to  any  justice  of  the  peace,  of  a  forcible  entry,  with  strong  hand,  on 
lands  or  tenements ;  or  a  forcible  detainer  after  a  peaceable  entry  ;  he  shall 
try  the  truth  of  the  complaint  by  jury,  and,  upon  force  found,  shall  restore 
the  possession  to  the  party  so  put  out :  and  in  such  case,  or  if  any  aliena- 
tion be  made  to  defraud  the  possessor  of  his  right  (which  is  likewise  decla- 
red to  be  absolutely  void,)  the  oOcndcr  shall  forfeit,  for  the  force  found,  tre- 
ble damages  to  the  party  grieved,  and  make  fine  and  ransom  to  the  king» 
But  this  does  not  extend  to  such  as  endeavor  to  keep  possession  manuforti, 
after  three  years'  peaceable  enjoyment  of  either  themselves,  their  ancestors, 
or  those  under  whom  they  claim." 

This  statute,  from  which  our  act  to  be  found  in  the  revisal  of  17'94,  ch, 
87,  was  taken,  has  been  much  m/sdified  by  a  more  recent  statute  ;  1  R.  C, 
ch.  115;  the  former  law  having  been  deficient  as  a  civil  remedy,  and  much 
abused.  The  provisions  of  this  last  act  afford  a  prompt  redress  to  a  party 
either  forcibly  turned  out  of  possession,  or  unlawfully  kept  out.  I  am 
aware  of  no  decisions  upon  this  act,  except  that  a  mortgagee  or  tenant  in: 
common  may  avail  himself  of  it,  (4  Rand.  468,)  and  that  the  justices  be- 
fore whom  the  writ  is  tried  have  the  power  of  granting  a  new  trial.  Ha"^" 
mock  1-5=  Wilson,  General  Court,  18^2.     The  statute  should  be  carciuny 


VOL. 


o^on 


170  REMEDIES  BY  ACTION.  [  book  3. 

examined  by  the  student,  as  it  affords  a  summary  remedy  for  the  recovery 
of  possession  of  real  estate,  in  many  cases,  instead  of  the  tedious  process 
of  ejectment.* 

Having  thus  treated  of  the  extrajudicial  remedy  by  entry,  in  cases  of 
ouster  of  the  freehold,  and  referred  the  student  to  a  recent  provision  in  ca- 
ses of  wrongful  entries  and  detainers,  I  proceed  to  consider  the  remedies 
by  action,  where  the  right  of  entry  is  taken  away,  or  where  the  party  chooses 
to  resort  for  redress  to  the  courts  of  justice  rather  than  to  take  his  redress 
into  his  own  hands. 

In  the  execution  of  this  design  I  shall  content  myself  with  referring  the 
student  to  Mr.  Blackstone's  account  of  the  remedies  by  writ  of  entry  and 
by  assize,  because  those  remedies  arc  certainly  altogether  disused  among 
us,  whether  they  be  or  be  not  in  force.  I  cannot  too  earnestly  recommend 
the  account  of  these  actions,  however,  by  the  learned  author,  because  there 
is  much  valuable  matter  interwoven  with  it,  and  it  will  contribute  moreover 
to  facilitate  the  researches  of  the  student. 

The  only  remedies  known  in  practice,  in  Virginia,  for  the  recovery  of 
real  estate,  besides  the  summary  remedy  before  mentioned,  are  the  action 
of  ejectment  and  the  writ  of  right.  Reversing  herein  the  order  of  Mr. 
Blackstone,  I  shall  proceed  to  consider  in  the  first  instance  the  action  of 
ejectment.  This  is  a  remedy  originally  given  for  an  ouster  or  amotion  of 
possession  from  an  estate  for  years  ;  though  it  has  long  since  been  moulded 
to  the  purpose  of  trying  the  title  to  lands  or  tenements,  whether  the  plain- 
tiff claims  an  estate  for  years  only,  or  a  freehold  for  life,  or  even  an  estate 
of  inheritance.  Hence  it  is  proper  that  we  should  understand  somewhat 
minutely  its  history,  the  manner  of  its  process,  and  the  principles  on  which 
it  is  founded. 

1.  "A  writ  then  of  ejcctione  firmae,  or  action  of  trespass  in  ejectment, 
lieth  where  lands  or  tenements  are  let  for  a  term  of  years,  and  afterwards 
the  lessor,  reversioner,  remainderman,  or  any  stranger,  doth  eject  or  oust 
the  lessee  of  his  term.  In  this  case  he  shall  have  his  writ  of  ejection  to 
call  the  defendant  to  answer  for  entering  on  the  lands  so  demised  to  the 
plaintiff  for  a  term  that  is  not  yet  expired,  and  ejecting  him.  And  by  this 
writ  the  plaintiff  shall  recover  back  his  term,  or  the  remainder  of  it  with  da- 
mages. 

"  The  writ  of  covenant,  for  breach  of  the  contract  contained  in  the  lease 
for  years,  was  anciently  the  only  specific  remedy  for  recovering  against  the 
lessor  a  term  from  which  he  had  ejected  his  lessee,  together  with  damages 
for  the  ouster.  But  if  the  lessee  was  ejected  by  a  stranger,  claiming  under 
a  title  superior  to  thatoftlie  lessor,  or  by  a  grantee  of  the  reversion,  (who 
might  at  any  time  by  a  common  recovery  have  destroyed  the  term,)  though 
the  lessee  might  still  maintain  an  action  of  covenant  against  the  lessor  for 
non-performance  of  his  contract  or  lease,  yet  he  could  not  by  any  means 
recover  the  term  itself.  If  the  ouster  was  committed  by  a  mere  stranger, 
without  any  title  to  the  land,  the  lessor  might  indeed,  by  a  real  action,  re- 
cover possession  of  the  freehold,  but  the  lessee  had  no  other  remedy  against 
the  ejector  but  in  damages,  by  a  writ  of  ejectione  firmae,  for  the  trespass 
committed  in  ejecting  liim  from  his  farm.  But  afterwards,  when  the  courts 
of  equity  began  to  oblige  the  ejector  to  make  a  specific  restitution  of  the 
land  to  the  party  immediately  injured,  the  courts  of  law  also  adopted  the 
.same  method  of  doing  complete  justice  ;  and,  in  the  prosecution  of  a  writ 
of  ejectment,  introduced  a  species  of  remedy  not  warranted  by  the  original 
writ  nor  prayed  by  the  declaration,  (which  arc  calculated  for  damages 
merely,  and  are  silent  as  to  any  rcotitution,)  viz..  a  judgment  to  recover  the 
^.crm,  and  a  writ  of  possession  thereupon.  This  method  seems  to  liavc 
'The  statute  Ii:is  been  ;is;ai>  amcii(Jed  by  a  sul)3cqucnt  act. 


CHAP.  10.]  EJECTMENT.  171 

been  settled  as  early  as  the  reign  of  Edward  IV.,  though  it  hath  been  said 
to  have  first  begun  under  Henry  VII.,  because  it  probably  was  then  first 
applied  to  its  present  principal  use,  that  of  trying  the  title  to  the  land. 

"  The  better  to  apprehend  the  contrivance  whereby  this  end  is  efiectctl, 
we  must  recollect  that  the  remedy  by  ejectment  is,  in  its  original,  an  action 
brought  by  one  who  hath  a  lease  for  years  to  repair  the  injury  done  him  by 
dispossession.  In  order,  therefore,  to  convert  it  into  a  method  of  trying  ti- 
tles to  the  freehold,  it  is  first  necessary  that  the  claimant  do  take  posses- 
sion of  the  lands,  to  empower  him  to  constitute  a  lessee  for  years,  that  may 
be  capable  of  receiving  this  injury  of  dispossession.  For  it  would  be  an 
offence,  called  in  our  law  maintenance,  (of  which  in  the  next  book,)  to  con- 
vey a  title  to  another,  when  the  grantor  is  not  in  possession  of  the  land; 
and,  indeed,  it  was  doubted  at  first  whether  this  occasional  possession, 
taken  merely  for  the  purpose  of  conveying  the  title,  excused  the  lessor  from 
the  legal  guilt  of  maintenance.  When  therefore  a  person,  who  hath  right 
of  entry  into  lands,  determines  to  acquire  that  possession,  which  is  wrong- 
fully withheld  by  the  present  tenant,  he  makes  (as  by  law  he  may)  a  formal 
entry  on  the  premises  ;  and,  being  so  in  the  possession  of  the  soil,  he  there, 
upon  the  land,  seals  and  delivers  a  lease  for  years  to  some  third  person  or 
lessee :  and,  having  thus  given  him  entry,  leaves  him  in  possession  of  the 
premises.  This  lessee  is  to  stay  upon  the  land  till  the  prior  tenant,  or  he 
who  had  the  previous  possession,  enters  thereon  afresh  and  ousts  him ;  or 
till  some  other  person  (either  by  accident  or  by  agreement  beforehand) 
comes  upon  the  land,  and  turns  him  out  or  ejects  him.  For  this  injury  the 
lessee  is  entitled  to  his  action  of  ejectment  against  the  tenant,  or  this  casual 
ejector,  whichever  it  was  that  ousted  him,  to  recover  back  his  term  and  da- 
mages. But  where  this  action  is  brought  against  such  a  casual  ejector  as 
is  before  mentioned,  and  not  against  the  very  tenant  in  possession,  the 
•court  will  not  suffer  the  tenant  to  lose  his  possession  without  any  opportu^ 
nity  to  defend  it.  Wherefore  it  is  a  standing  rule,  that  no  plaintiff  shall 
proceed  in  ejectment  to  recover  lands  against  a  casual  ejector,  without  no.- 
tice  given  to  the  tenant  in  possession,  (if  any  there  be,)  and  making  him  a 
defendant  if  he  pleases.  And,  in  order  to  maintain  the  action,  the  plaintiff 
must,  in  case  of  any  defence,  make  out  four  points  before  the  court,  viz., 
title,  lease,  entry,  and  ouster.  First,  he  must  shew  a  good  title  \n  his  lessor, 
which  brings  the  matter  of  right  entirely  before  the  court ;  then,  that  the 
lessor,  being  seised  or  possessed  by  virtue  of  such  title,  did  make  him  the 
lease  for  the  present  term ;  thirdly,  that  he,  the  lessee  or  plaintiff,  did  enter 
or  take  possession  in  consequence  of  such  lease;  and  then,  lastly,  that  the 
defendant  ousted  or  ejected  him.  Whereupon  he  shall  have  judgment  to 
recover  his  term  and  damages;  and  shall,  in  consequence,  have  a  writ  of 
possession,  which  the  sheriff  is  to  execute  by  delivering  him  the  undisturb- 
ed and  peaceable  possession  of  his  term. 

"  This  is  the  regular  method  of  bringing  an  action  of  ejectment,  in  which 
the  title  of  the  lessor  comes  collaterally  and  incidentally  before  the  court, 
in  order  to  shew  the  injury  done  to  the  lessee  by  this  ouster.  This  method 
must  be  still  continued  in  due  form  and  strictness,  save  only  as  to  the  no- 
tice to  the  tenant,  whenever  the  possession  is  vacant,  or  there  is  no  actual 
occupant  of  the  premises  ;  and,  also,  in  some  other  cases.  But,  as  much 
trouble  and  formality  were  found  to  attend  the  actual  making  of  the  lease, 
entry,  and  ouster,  a  new  and  more  easy  method  of  trying  titles  by  writ  of  eject- 
ment, where  there  is  any  actual  tenant  or  occupier  of  the  premises  in  dis- 
pute, was  invented  somewhat  more  than  a  century  ago  by  the  lord  chief 
justice  Rolle,  who  then  sat  in  the  court  of  upper  bench,  so  called  during 
the  exile  of  king  Charles  the  Second.  This  new  method  entirely  depends 
wpon  a  string  of  legal  fictions ;  no  actual  lease  is  ma.de,  no  actual  entry  by 


172  EJECTMENT.  ['book  3. 

the  plainlifT,  no  actual  ouster  by  the  defendant;  but  all  are  merely  ideal, 
'for  the  sole  purfwsc  of  trying  the  title.  To  this  end,  in  the  proceedings  a 
lease  for  a  term  of  years  is  stated  to  have  been  made,  by  him  who  claims 
title,  to  the  plaintift"  who  brings  the  action,  as  by  John  Rogers  to  Richard 
Smith,  [John  Doe,  or  some  other  fictitious  lessee.]  It  is  also  stated  that 
Smith,  the  lessee,  entered ;  and  that  the  deiendant,  William  Stiles,  [also  a 
fictitious  person,]  who  is  called  the  casual  ejector,  ousted  him  ;  for  which 
ouster  he  brings  this  action.  As  soon  as  tliis  action  is  brought,  and  the 
complaint  fully  stated  in  the.  declaration,  Stiles,  the  casual  ejector,  or  defen- 
dant, sends  a  written  notice  to  the  tenant  in  possession  of  the  lands,  as 
George  Saunders,  informing  him  of  the  action  brought  by  Richard  Smith, 
and  transmitting  him  a  copy  of  the  declaration :  withal  assuring  him  that 
he.  Stiles,  the  defendant,  has  no  title  at  all  to  the  premises,  and  shall  make 
no  defence ;  and,  therefore,  advising  the  tenant  to  appear  in  court  and  de- 
fend his  own  title  :  otherwise  he,  the  casual  ejector,  will  suffer  judgment  to 
be  had  against  him  ;  and  thereby  the  actual  tenant,  Saunders,  will  inevita- 
bly be  turned  out  of  possession.  On  receipt  of  this  friendly  caution,  if  the 
tenant  in  possession  does  not  within  a  limited  time  apply  to  the  court  to 
be  admitted  a  defendant  in  the  stead  of  Stiles,  he  is  supposed  to  have  no 
right  at  all ;  and,  upon  judgment  being  had  against  Stiles,  the  casual  ejec- 
tor, Saunders,  the  real  tenant,  will  be  turned  out  of  possession  by  the  sheriff. 

"But  if  the  tenant  in  possession  applies  to  be  made  a  deiendant,  it  is 
allowed  liisn  upon  this  condition  ;  that  he  enter  into  a  rule  of  court  to  con- 
fess, at  (he  trial  of  the  cause,  three  of  the  four  requisites  for  the  mainte- 
nance of  the  plaintiff's  action,  viz.,  the  lease  of  Rogers,  the  lessor, — the 
entnj  of  Smith,  the  plaintiff, — and  his  ouster  by  Saunders  himself,  now  made 
the  defendant  instead  of  Stiles  :  which  requisites,  being  wholly  fictitious, 
should  the  defendant  put  the  plaintiff  to  prove  them,  he  must  of  course  bo 
non-suited  for  want  of  evidence  ;  but  by  such  stipulated  confession  of  lease, 
entry,  and  onstcr,  the  trial  will  now  stand  upon  the  merits  of  the  title  only." 
After  the  entry  into  the  rule  above  mentioned,  which  is  called  the  common 
rule,  and  after  making  up  the  issue,  the  cause  proceeds  in  the  name  of  the 
real  defendant  instead  of  the  casual  ejector,  and  is  placed  on  the  docket 
under  the  style  of  "  Rogers'  lessee  vs.  Saunders."  Upon  the  trial,  the  les- 
sor of  the  plaintiff,  Rogers,  must  make  out  a  clear  title ;  otherwise  his  fic- 
titious lessee  cannot  obtain  judgment  for  the  term  supposed  to  be  granted. 
J3ut  if  he  makes  out  a  title  in  a  satisfactory  manner,  a  judgment  is  rendered 
in  favor  of  Smith,  the  nominal  or  fictitious  lessee,  lor  liis  term  yet  to  come, 
and  the  damages  assessed  by  the  jury,  which  are  merely  nominal ;  and  the 
actual  plaintiff,  Rogers,  then  sues  out  a  writ  of  possession,  called  ^n  habere 
facias  possessionem,  directed  to  the  sheriff,  and  commanding  him  to  deliver 
possession. 

"Such  is  the  modern  way  of  obliquely  bringing  in  question  the  title  to 
lands  and  tenements,  in  order  to  try  it  in  this  collateral  manner ;  a  method 
which  is  now  universally  adopted  in  almost  every  case.  It  is  founded  on 
the  same  principle  as  the  ancient  writs  of  assise,  being  calculated  to  try  the 
mere  possessory  title  to  an  estate  ;  and  hath  succeeded  to  tho.^e  i^al  actions, 
as  being  infinitoly  more  convenient  for  attaining  the  end  of  justice  :  because 
the  form  of  the  proceeding  being  entirely  fictitious,  it  is  wholly  in  the  pow- 
er of  the  court  to  direct  the  application  of  that  fiction,  so  as  to  prevent 
fraud  and  chicane,  and  eviscerate  the  very  truth  of  the  title.  The  writ  of 
ejectment  and  its  nominal  parties,  (as  was  resolved  by  all  the  judges,)  arc 
'judicially  to  be  considered  as  tl^e  fictitious  form  of  an  action,  really  brought 
by  the  lessor  of  the  plaintiff  against  the  tenant  in  possession  ;  invented  un- 
der the  control  and  power  of  the  court,  for  the  advancement  of  justice  in 


CHAP.  10.]  EJECTMENT.  173 

many  respects,  and  to  force  the  parties  to  go  to  trial  on  the  merits,  without 
being  entangled  in  the  nicety  of  pleadings  on  either  side.'  " 

It  will  be  observed  by  the  student,  that,  in  the  commencement  of  an 
ejectment,  no  writ  or  other  process  issues  against  the  defendant,  nor  is 
there  any  succession  of  pleadings.  1  Call,  437.  The  suit  is  commenced 
by  a  declaration  in  the  first  instance.  The  plaintiff's  counsel  prepares  tHe 
declaration  and  a  notice  to  the  tenant  in  possession,  which  being  delivered 
to  the  sheriff,  it  is  his  duty  to  serve  them,  which  he  usually  does  by  dcli- 
veringr  a  true  copy  and  reading  it  and  explaining  the  purport  of  it.  ilBelw. 
Gil.*  The  tenants  in  possession  are  the  proper,  if  not  the  natural,  defen- 
dants to  an  ejectment,  although  the  landlord  has  a  right  to  be  made  a  de- 
fendent,  to  prevent  his  being  injured  by  a  combination  between  the  lessor 
of  the  plaintiff' and  his  tenant ;  but  he  may  waive  his  right,  or,  having  as- 
serted it,  may  relinquish  it  by  consent  of  the  lessor  of  the  plaintiif.  2  Call, 
498. 

The  notice  must  specify  some  day  in  the  succeeding  term  for  the  appear- 
ance of  the  defendant,  at  which  time,  if  he  does  not  appearand  confess  the 
lease,  entry,  and  ouster,  a  common  order  is  entered  against  him.  The 
proceedings  in  ejectment  all  take  place  in  court,  and  not  at  the  rules.  1 
Call,  4-29.  For  the  assent  of  the  court  is  necessary  to  the  admission  of  the 
real  defendant,  and  by  his  appearance  and  entering  into  the  common  rule, 
i.  e.  pleading  the  general  issue,  confessing  lease,  entry,  and  ouster,  and 
agreeing  to  insist  on  the  title  only  at  the  trial,  the  issue  is  at  once  made 
up,  and  there  is  no  necessity  for  the  case  going  to  the  rules.     Ibid. 

On  the  day  fixed  by  the  notice,  and  on  the  motion  of  the  plaintiff's 
counsel,  the  tenant  iii  possession  on  whom  the  notice  was  served  is  so- 
lemnly called.  If  he  appears,  he  at  once  enters  into  the  common  rule,  and 
makes  up  the  issue  by  pleading  not  guilty,  and  if  he  refuses  to  do  it  judg- 
ment is  rendered  against  him.  If  he  fails  to  appear,  a  common  order  is 
entered  against  him  to  this  effect; — it  recites  the  proof  of  notice,  and  that 
the  defendant  had  been  duly  called  but  did  not  appear,  and  orders  that  un- 
less he  appear  at  the  next  term  and  enter  himself  defendant  in  lieu  of  the 
casual  ejector,  and  also  enter  into  the  common  rule,  judgment  shall  be  gi- 
ven for  the  plaintiff,  and  a  Avrit  of  possession  shall  be  awarded. 

This  order  must  be  taken  on  the  day  to  which  the  notice  was  given,  and 
if  that  is  permitted  to  slip  without  calling  the  tenant  in  possession  and 
making  the  common  order,  it  cannot  be  done  afterwards  during  the  term, 
and  the  plaintiff  must  begin  anew,  unless  the  objection  is  waived. 

The  notice  and  copy  of  the  declaration  may  be  served  any  where,  if  it 
be  personally  delivered  to  the  tenant.  If  he  cannot  be  found,  service  on 
his  wife  is  good,  provided  it  be  on  the  land.  So  service  on  a  servant,  child, 
(or,  I  presume,  any  other  person,)  living  on  the  premises  with  the  tenant, 
and  constituting  part  of  his  family,  is  good  service,  if  afterwards  acknow- 
ledged by  the  tenant  himself.  And,  lastly,  if  the  tenant  or  his  wife  refuse 
to  receive  the  declaration,  a  copy  should  be  left  for  them,  or  affixed  to  some 
notorious  part  of  the  premises.  And  if  there  be  no  one  in  possession  this 
course  should  be  pursued. 

If  the  court  is  not  entirely  satisfied  with  the  notice,  it  may  grant  a  rule 
on  the  tenant  to  shew  cause  why  the  service  should  not  be  deemed  good, 
and  it  directs  the  mode  in  which  the  rule  shall  be  served.  See  Sclw.  61i, 
G42. 

As  to  the  declaration.     1.  The  venue  should  be  laid  in  the  county  where 

the  land  lies  ;  for  the  action  is  local.     2.  The  day  of  the  demise  must  be 

laid  posterior  to  the  time  when  the  plaintiff's  title  accrued,  for  if  he  had  no 

title  he  could  make  no  lease.     Yet  the  court  will  permit  this  to  be  araend- 

*  A  service  on  Sunday  is  not  ijoocl.   0  JJarn,  ii,  Cres.  701. 


174  EJECTMENT.  [book  3. 

«(1.  7  Cranch,  477.  And  indeed  it  is  cured  by  our  acts.  3  Call,  362,  3. 
The  demise  may  be  for  any  number  of  years.  It  should  be  so  long  as  to 
reach  beyond  the  probable  termination  of  the  suit,  for  if  at  the  time  of  the 
judgment  the  lease  is  expired,  there  is  no  term  for  the  nominal  plaintiff  to 
recover.  Yet  if  the  term  expires  before  judgment,  the  court  will  enlarge  it 
on  motion.  Cow.  841.  1  Mun.  218.  The  appellate  court  will  not  indeed 
even  notice  the  fact  of  the  expiration  of  the  term.  1  H.  &,M.  177.  1  Mun. 
218.  And  after  the  judgment  is  rendered  by  it,  and  the  cause  goes  back 
to  the  court  below,  that  court  will  enlarge  it  upon  a  rule  to  shew  cause.  6 
Mun.  185.  Yet  see  1  Barn.  &  Cres.  121.  4.  Formerly  it  was  held  that 
the  property  should  be  so  described  as  that  the  sheriif  might  know  from  an 
inspection  of  the  record  what  he  is  to  deliver  possession  of.  This  strict- 
ness in  England  seems  to  be  relaxed,  and  it  is  nov/  the  rule  that  the  sheriff 
in  executing  the  habere  facias  possessionan  must  take  his  information  from 
the  party  plaintiff  himself.  1  Bur.  623.  5  Bur.  2673.  Selw.  639.  This 
information  the  plaintiff  gives  at  his  own  risk,  for  he  is  a  trespasser  if  he 
shews  the  wrong  land,  and  moreover  the  court  will  interpose  in  a  summary 
way,  and  restore  the  possession  of  what  was  not  recovered.  Sed  vide  1 
Mun.  162,  6  Mun.  25.  5.  The  ouster  must  be  laid  after  the  supposed 
lease,  but  an  error  herein,  like  others,  would  be  cured  by  our  statute. 

The  only  plea  of  the  defendant  in  this  action,  according  to  our  practice, 
is  that  of  "  not  guilty,"  under  which  he  may  prove  his  own  title,  or  that  the 
plaintiff  hath  no  title,  or  is  barred  by  the  statute  of  limitations. 

Where  there  are  several  persons  having  a  joint  title,  the  declaration  must 
allege  a  joint  demise.  This  is  the  case  of  joint-tenants  and  parceners. 
Selw.  638.  2  Chitty,  401.  But  with  tenants  in  common  it  is  otherwise, 
for  they  are  seised  per  my  et  nen  per  tout,  and  therefore  there  must  be  laid 
a  several  demise,  by  each,  of  their  undivided  shares,  each  demise  being 
laid  in  a  separate  count.  There  is  another  mode,  however.  The  tenants 
in  common  may  join  in  an  actual  lease  to  a  third  person,  and  then  there 
may  be  a  single  count  on  a  fictitious  demise  by  that  person.  The  demise 
by  a  tenant  in  common  of  his  undivided  share,  should  specify  such  share  ; 
as,  for  instance,  "  one  undivided  moiety  or  half  part,  the  whole  into  two 
equal  moieties  to  be  divided,"  though  under  a  count  for  an  entirety  or  an 
iialf,  any  less  part  (as  an  undivided  third)  may  be  recovered.  1  Bur.  326. 
(See  1  Mun.  162.    9  Cranch,  153.    But  not  any  greater  part  than  demanded. 

Where  the  title  is  in  several  persons  severally  concerned  in  interest  as 
trustees  and  cestuis  que  trust,  it  is  usual  to  declare  upon  the  demise  of  each 
in  separate  counts.  And  so  where  I  claim  title  under  different  persons,  I 
may  count  upon  several  demises  from  each  of  them.  3  Mun.  93.  2  Ran. 
422.  And  this  is  with  much  reason,  since  the  action,  being  fictitious,  is 
moulded  to  effect  the  purposes  of  justice;  and  it  is  but  just  that  I  should 
recover,  provided  any  of  those  under  whom  I  claim  had  a  good  title.  Such 
a  course  is  very  usual,  it  seems,  with  us,  and  is  exceedingly  convenient  in 
those  parts  of  this  commonwealth  where  a  man  is  sometimes  compelled  to 
fortify  his  title  by  purchasing  from  half  a  dozen  persons  in  succession.  If 
he  has  not  completed  his  purchase  from  any  of  them  by  obtaining  his  deed, 
then  he  counts  upon  a  lease  from  such  vendor. 

One  tenant  in  common  may  maintain  ejectment  against  his  companion 
upon  an  actual  ouster,  (Litt.  §  322,)  but  not  without.  7  Cranch,  457,  471. 
Yet  thirty-six  years'  sole  possession  and  exclusive  receipt  of  profits  accom- 
panied by  a  denial  of  title,  was  held  suflicient  for  a  jury  to  presume  an 
ouster.     Cow.  217.     11  East,  49. 

An  infant  may  maintain  an  ejectment,  and  for  that  purpose  may  make 
a  lease  tliough  no  rent  be  reserved  in  it.  3  Burr.  1606.  In  strictness  the 
lease  ought  to  bg  hid  to  have  been  made,  in  the  case  of  an  infant,  by  deed ; 


CHAP.  10.]  EJECTlVrENT.  175 

but  if  it  be  not,  the  omission  is  aided  by  verdict.  So  too  of  a  corporation- 
aggregate,  the  lease  should  be  laid  to  have  been  by  deed,  but  this  also  is 
aided  by  verdict.  Sehv.  639.  Our  statute,  I  presume,  cures  all  such  er- 
rors.    1  R.  C.  ch.  128,  §  102. 

It  is  said  in  4  Ran.  85,  that  an  ejectment  may  be  brought  against  several 
persons  in  possession.  And  this  is  doubtless  true  where  they  have  a  pos- 
session jointly,  or  in  common,  or  as  coparceners  ;  but  not,  I  conceive,  where 
they  hold  in  severalty.  The  cases  cited  by  the  judge  in  that  case,  from  1 
Washington,  do  not  maintain  the  opinion. 

Of  the  proof  by  the  plaintiff  in  support  of  this  action.  The  right  of 
entry  is  essential  to  maintain  the  action  ;  for  if  it  has  never  existed,  as 
where  the  lessor  of  the  plaintiff  is  a  reversioner  or  remainderman,  and  the 
particular  estate  is  yet  undetermined,  it  does  not  lie.  So  if  the  right  of  en- 
try has  been  tolled  or  taken  away,  the  plaintifi'  cannot  succeed  ;  for  though 
the  tenant  confesses  the  lease,  entry,  and  ouster,  yet  he  is  left  at  liberty  to 
contest  the  title ;  and  the  right  of  entry  is  part  of  the  title.  Hence,  as  the 
act  of  limitations  (1  R.  C.  ch.  128,  §  1,)  declares  that  no  person  shall  make 
an  entry  into  lands  but  within  tv/enty  years  after  his  right  or  title  accrued,* 
no  person  can  maintain  an  ejectment  where  there  has  been  twenty  years' 
adverse  possession.  It  is  thus,  and  thus  only,  that  the  statute  of  limitations 
operates  as  a  bar  to  an  ejectment  when  the  owner  has  been  out  of  posses- 
sion for  twenty  years  or  more ;  for  that  action  is  not  mentioned  in  the  act, 
and  the  limitation  therefore  only  grows  out  of  the  restriction  upon  the  right 
of  entry.  On  like  principles  five  years'  peaceable  possession  without  entry 
or  claim  by  the  person  entitled,  and  a  descent  cast,  will  bar  an  ejectment 
by  such  person,  because  it  tolls  or  takes  away  his  entry.  Litt.  §  385.  1 
R.  G.  cb.  129,  §  4. 

We  must  not,  however,  forget,  that  although  the  act  of  limitations  bars 
an  entry  after  twenty  years,  yet  it  contains  a  saving  in  favor  of  infants, 
femes  covert,  non  compos,  and  persons  imprisoned  ;  and  such  person  or  his 
heirs  may  enter  and  may  of  course  maintain  ejectment  within  ten  years  af- 
ter the  disability  removed,  or  the  death  of  the  disabled  person.     1  R.  C.  ch. 

128,  §  2.  On  this  clause,  however,  it  is  material  to  observe,  1.  That  if  the 
statute  once  begins  to  run  it  never  stops  ;  4  T.  R.  310.  G  Mun.  352.  2 
H.  &  M.  289;  so  that  if  A,  of  full  age,  is  disseised  and  dies,  and  the  lands 
descend  to  bis  infant  son,  the  statute  is  not  suspended  by  the  infancy,  for 
it  began  to  run  against  A  in  his  lifetime,  who  had  capacity  to  sue.  So  if  a 
woman  not  under  disability  is  disseised,  and  then  marries,  the  act  is  not 
suspended  by  the  coverture.  2.  No  person  can  avail  himself  of  any  disa- 
bility except  that  which  was  existing  when  the  right  of  action  first  accrued, 
and  one  disability  cannot  be  built  up  upon  another,  or  (if  I  may  so  speak) 
spliced  or  tacked  to  it  so  as  to  continue  the  right  of  action.  3  John.  C.  129. 
Thus  if  a.  feme  infant  is  disseised,  the  right  of  action  accrues  at  once,  and 
she  will  have  ten  years,  after  attaining  full  age,  to  sue.  But  if  in  such  case 
she  leaves  the  country  or  marries  while  she  is  within  age,  and  is  covert  fifty 
years  and  her  husband  dies,  she  cannot  maintain  ejectment  by  tacking  the 
disability  of  absence  or  of  coverture  to  that  of  infancy,  although  they  did 
commence  before  th«  disability  of  infancy  was  removed.  It  is  the  same 
thing  with  the  disability  of  lunacy,  imprisonment,  &c.,  though  these  arc 
not,  like  marriage,  voluntary  acts.     See  2  H.  &  M.  30G.     3  John.  Ch.  Rep. 

129.  18  John.  Rep.  40.  G  E.  80.  4  T.  R.  300,  310.  Plow.  355,  Stovv- 
cU  vs.  Zouch.  3.  If,  however,  the  right  of  entry  accrued  during  the  disa- 
bility, it  will  not  be  barred  though  the  disability  continues  an  hundred  years  ; 
and  thus  it  is  possible  that  ejectment  will  lie  when  a  writ  of  right  will  not. 
For  as  to  that  there  is  no  such  saving.     4.  If  one  of  two  parceners  is  undcE 

*  The  limitatiou  is  reduced  to  fifteen  years  by  the  act  of  1G30.  ch.  30, 


176  EJECTi\fENT.  [book  3. 

disability,  tlic  otlior,  who  is  not  so.  must,  nevertheless,  sue  within  twenty 
years,     ii  Taun.  411.     4  T.  R.  510.     7  Cranch,  loO. 

It  may  also  be  observed  as  to  the  statute  of  limitations ;  1.  That  it  docs 
not  run  in  favour  of  trustees  against  cestui  que  trust,  as  long  as  the  confi- 
dence may  fairly  be  presumed  to  continue.  But  when  that  has  ceased  it 
begins  to  run.  1  Call,  428.  1  Wash.  J4.5.  4  Mun.  2;»:2.  4  H.  &  M. 
130.  2.  It  runs  in  equity  as  well  as  at  law,  in  favor  of  disseisors  and  tort 
feasors.  1  Call,  4i28.  3.  It  only  runs  where  the  possession  is  adverser 
Selw.  G60.  And  where  a  party  holds  by  purchase  from  a  trustee,  though 
lie  may  be  considered  to  some  intents  trustee  in  equity,  yet  the  statute 
runs  in  his  favor.  G  Mun.  357.  And  a  purchaser  without  notice  may  join 
his  adversary  possession  to  that  of  his  vendor,  so  as  to  protect  himself  by 
the  act.     8  Crancli,  4G-3. 

In  support  of  his  title  the  plaintiff  may  either  prove  an  uninterrupted  anc^ 
peaceable  possession  by  him  and  those  under  whom  he  claims  for  fifteen 
years  anterior  to  the  ouster,  which  itself  is  sufiicient  to  enable  him  to  main- 
tain ejectment,  or  he  may  deduce  his  title  irora  the  commonwealth  by  a 
regular  and  unbroken  chain  ; — though  if  lie  and  the  defendant  both  claim 
nndcr  the  same  remote  title,  it  will  be  unnecessary  for  him  to  go  farther 
back  than  that  common  source. 

The  plain tiiT  in  this  action  frequently  traces  his  title  by  devise  and  de- 
scent througli  different  persons.  The  student  is  referred  to  Peake's  Ev, 
part  2,  ch.  ] 4,  for  an  exposition  of  the  evidence  proper  in  ejectment  to  es- 
tablish a  title  by  the  heir. 

The  plaintiir  must  in  this  action  recover  by  the  strength  of  his  own  title, 
not  on  the  ground  of  the  weakness  of  his  adversary's.  4  Bur.  2484—7. 
5  T.  R.  107,  HO,  note  (b.)  Possession  is  a  good  title  against  any  plain- 
tilT  except  the  person  entitled  to  the  possession.  Tliis  is  the  established 
doctrine  of  the  subject,  and  empliatically  laid  down  by  the  courts.  1  Gil. 
118.  Hence  if  the  defendant  prove  a  title  out  of  the  lessor,  it  is  sufficient, 
although  he  have  no  title  himself.  Bull.  110.  It  is  true  he  must  shew  the 
title  to  be  an  actually  subsisting  title,  and  prove  possession  under  it  within 
twenty  years.  There  are  also  certain  cases  in  which  he  will  not  be  permit- 
ted to  set  up  the  outstanding  legal  title  against  the  plnintifT.  Tlius  where 
the  plaintiff  claims  b}  mortgage  from  the  defendant  himself,  the  latter  can- 
not set  up  against  him  a  prior  mortgage,  for  this  would  be  to  deny  his  own 
title  at  the  time  he  mortgaged  to  the  plaintiff,  which  by  his  deed  he  is  es- 
topped from  doing.  See  IT.  R.  758.  2  T.  R.  084.  3  Bur.  1410.  The 
law  is  the  same  in  the  case  of  a  landlord  who  brings  ejectment  against  his 
tenant,  or  any  person  claiming  under  him  ;  2  Bl.  Rep.  1259.  2  Salk.  447; 
and  so  in  any  other  case  where  the  defendant  has  entered  into  possession 
tmdev  the  plaintijf,  acknowledo-ing  his  title,  he  cannot  afterwards  controvert 
it.     See  6  John.  34.     7Johnri57.     10  John.  292.     14  E.  488. 

So,  too,  where  the  title  set  up  against  the  plaintiff  amounts  but  to  a  charge 
upon  t(ic  lands,  the  title  will  not  bar  him.  As  where  the  plaintiff  is  mort-- 
gagor,  he  is  entitled  to  the  possession  except  against  the  mortgagee,  and  if 
he  sues  to  recover  it  from  any  other  person,  the  defendant  cannot  defeat 
him  by  shewing  the  mortn-ajre,  though  it  conveyed  thedegal  title.  7  John. 
Kep.  2/8.  1  or  m  substance  the  mortgage  is  only  a  charge.  So,  too,  neith- 
er an  outstanding  satisfied  term,  nor  a  trust  whose  purposes  have  been  ful- 
Tdled,  will  be  permitted  to  impede  the  plaintiffs  recovery  ;  but  in  such  ca- 
ses the  jury  will  be  directed  to  presume  a  surrender  or  conveyance.  Cow. 
40.  Bull.  110.  7T.  R.  2.  4  T.  R.  083.  And  when  that  presumption  is 
raised,  there  is  an  end  of  the  difficulty  arising  out  of  the  legal  title  created 
l)y  the  term.  2  T.  R.  090.  The  general  rule,  however,  seems  to  be,  that 
the  plaintiff  must  recover  upon  a  legal  title.     8  T.  R.  122.     And,  therefore, 


CHAP.  10.]  EJECTMENT.  177 

where  there  is  an  oulslanding  unsatisfied  term,  it  will  be  a  good  bar  to  his 
recovery;  for  if  it  is  unsatisfied  it  cannot  be  presumed  to  be  surrendered; 
and  unless  the  jury  are  satisfied  in  presuming  a  surrender  from  the  fact  of 
satisfaction,  the  legal  title  stands  uncontroverted,  and,  being  outstanding, 
must  defeat  the  plaintiff.  2  T.  R.  684.  Moreover  the  jury  must  draw  the 
conclusion  where  a  surrender  is  presumed  from  satisfaction,  and  should  by 
their  verdict  find  the  surrender  as  a  fact :  for  if  they  merely  find  the  matter 
of  presumption,  the  court  cannot  itself  draw  the  conclusion.     7  T.  R.  47. 

Such  are  the  English  doctrines.  In  Virginia,  Lord  Mansfield's  decision 
in  Hart  vs.  Knot,  (Cow.  46,)  that  a  cestui  que  trust  shall  not  be  impeded 
in  his  ejectment  by  a  trust,  the  purposes  of  which  have  been  satisfied,  has 
been  recognized  as  the  law  of  the  subject,  and  acted  on  accordingly.  6 
Mun.  38. 

But  with  these  limitations  the  principle  seems  undeniable,  that  proof  of 
title  in  a  third  person  will  suffice  as  a  defence  for  the  defendant.  Thus,  if 
A,  claiming  under  a  patent  dated  January  1,  1825,  sues  C,  he  may,  upon 
the  trial,  prove  a  title  in  B  by  virtue  of  an  elder  patent,  although  he  does 
not  claim  under  B.     See  a  note  3  Wheat.  224,  controverting  this  doctrine. 

So  far  indeed  is  the  idea  carried  of  the  legal  title  prevailing  in  ejectment, 
that  a  practice  once  existing  of  not  permitting  the  legal  estate  to  be  set  up 
at  law  by  a  trustee  against  his  cestui  que  trust,  (1  T.  R.  759,)  is  no  longer 
countenanced  in  England.  5  E.  138,  cited  1  Chitty,  190.  See  2  T.  R, 
684.  7  T.  R.  47.  8  T.  R.  2,  122.  The  courts  seem  to  think  it  better  to 
keep  the  jurisdiction  herein  separate  and  distinct,  lest  confusion  might 
eventually  be  introduced  by  inquiries  in  a  court  of  law  into  complicated 
equities.     See  2  T.  R.  684. 

In  this  action  evidence  cannot  be  introduced  to  prove  that  a  patent  was 
irregularly  obtained.  I  H.  &  M.  303.  See  9  Cranch,  87,  94.  5  Wheat. 
293.    6  Mun.  238. 

In  the  progress  of  the  trial  the  defendant  may  call  on  the  plaintiff's  lessor 
to  prove  that  the  defendant  had  possession  at  the  time  the  suit  was  brought. 
Runnington,  106.  1  Wils.  220.  A  case  agreed,  finding  the  lease,  entry, 
and  ouster,  sufficiently  finds,  however,  the  fact  of  possession,  unless  the  con- 
trary is  found  expressly.  2  Mun.  453,  In  England  at  this  time  by  gene- 
ral rule  the  defendant  confesses  possession.  Norris's  Peake,  520.  2  Brod. 
&  Bing.  470. 

0/  the  verdict  and  judgment.  The  verdict  in  ejectment  should  be  suffi- 
ciently certain  to  enable  the  sheriff  to  deliver  possession.  Thus  a  verdict 
for  four  hundred  acres,  part  of  the  land  in  the  declaration  mentioned,  with- 
out specifying  the  bounds,  was  set  aside.  6  Mun.  25.  The  jury,  if  they 
find  part  of  the  land  sued  for,  should  designate  the  boundaries.  1  Mun, 
162.  Sed  vide  Bur.  629,  2673.  Selw.  639.  But  where  they  find  the 
whole,  it  is  sufficient  without  such  designation.     See  4  Mun.  468. 

If  a  party  sues  for  one  hundred  acres,  he  may  recover  any  less  quantity. 
So  if  he  sues  for  an  undivided  half,  he  may  have  judgment  for  any  less 
portion  to  which  he  may  appear  entitled  ;  1  Bur.  326 ;  for  the  lessor  shall 
recover  according  to  his  title. 

If  the  jury  "  find  for  the  plaintiff  one  cent  damages,"  without  more  say- 
ing, the  clerk  should  extend  the  verdict  so  as  to  enter  it  for  the  lands  in  the 
declaration  mentioned  also.     1  Call,  246. 

The  judgment  must  always  follow  the  verdict,  and  be  limited  to  the  land 
which  the  jury  have  found  for  the  plaintiff:  so  that  if  this  is  not  clearly  its 
effect  it  will  be  erroneous.  2  Wash.  276.  The  judgment  after  verdict  fof 
the  plaintiff  is  for  his  term  yet  to  come  and  unexpired  in  the  lands,  &c.  and 
his  damages  (which  are  only  nominal)  and  costs. 
VOL.  2—23 


178  TRESPASS  FOR  MESNE  PROFITS.  [  book  3. 

The  whole  effect  of  a  judgment  for  the  plaintiff  in  this  action  is  to  put 
him  in  possession,  and  the  only  point  decided  is,  that  he  has  a  better  title 
to  the  possession  than  the  defendant.     4  Mun.  397. 

The  execution  in  an  action  of  ejectment  is  an  habere  facias  possessionem. 
If  the  issue  of  this  be  delayed  by  injunction  more  than  a  year,  the  plaintiff 
should  within  a  year  after  final  dissolution,  move  for  a  rule  to  shew  cause 
why  execution  should  not  issue,  and  thereupon  an  execution  will  be  award- 
ed.    6  Mun.  185.     Nor  will  he  be  put  to  a  scire  facias. 

A  verdict  and  judgment  in  one  ejectment  is  no  bar  to  another  ejectment 
for  the  same  land.  6  Mun.  433.  After  a  variety  of  trials,  however,  all  ter- 
minating in  the  same  way,  a  court  of  equity  will  interfere  by  injunction  or 
bill  of  peace,  and  quiet  the  possession.  4  P.  Wms.  G71.  1  Str.  404.  2 
Br.  P.  Cases,  217. 

An  ejectment  does  not  abate  by  the  death  of  the  lessor  of  the  plaintiff. 
1  H.  &  M.  531.  2  H.  &  M.  614.  2  Mun.  453.  3  Mun.  191.  But  se- 
curity for  costs  must  be  given.*  2  H.  &  M.  31.  Possession  in  such  case 
is  to  be  given  under  the  control  of  the  court.     2  Mun.  453. 

The  damages  recovered  in  these  actions,  though  formerly  their  only  in- 
tent, are  now  usually  (since  the  title  has  been  considered  as  the  principal 
question)  very  small  and  inadequate;  amounting  commonly  to  one  shilling, 
or  some  other  trivial  sum.  In  order,  therefore,  to  complete  the  remedy, 
when  the  possession  has  been  long  detained  from  him  that  had  the  right  to 
it,  an  action  of  trespass  also  lies,  after  a  recovery  in  ejectment,  to  recover 
the  mesne  profits  which  the  tenant  in  possession  has  wrongfully  received. 
Which  action  may  be  brought  in  the  name  of  either  the  nominal  plaintiff 
iri  the  ejectment,  or  his  lessor,  against  the  tenant  i:i  possession  :  whether 
he  be  made  party  to  the  ejectment,  or  suffers  judgment  to  go  by  default. 
Where  the  action  is  brought  against  the  defendant  in  ejectment,  the  evi- 
dence necessary  to  maintain  it  is  a  copy  of  the  judgment  and  common  rule 
in  ejectment,  with  proof  of  the  length  of  time  the  defendant  has  occupied, 
and  of  the  value  of  the  mesne  profits.  Where  the  judgment  has  been  by 
default,  he  must  also  shew  the  writ  of  possession  executed,  or  that  he  has 
been  let  into  possession.     Selw.  672,  673. 

Where  this  action  is  brought  against  the  defendant  in  ejectment  for  rents 
and  profits  subsequent  to  the  demise  laid,  no  proof  of  title  is  required,  that 
being  already  established  by  the  verdict  and  judgment  in  the  ejectment. 
But  where  the  plaintiff  goes  against  the  precedent  occupier,  or  against  the 
defendant  in  ejectment  for  a  time  anterior  to  that  laid,  he  is  put  to  proof  of 
his  title  :  Selw.  673.  2  Call,  508 :  and  in  these  cases  the  action  should  be 
brought  in  the  name  of  the  lessor  of  the  plaintiff.  In  the  foregoing  cases 
it  may  be  brought  either  in  the  name  of  the  lessor  or  that  of  the  fictitious 
plaintiff.     Norris's  Peake,  537. 

The  general  issue  in  this  action  is  not  guilty.  But  if  more  than  five 
years'  profits  are  claimed,  the  defendant  may  protect  himself  from  all  but 
five  years  anterior  to  the  commencement  of  the  suit,  by  pleading  the  sta- 
tute of  limitations.  The  plea  in  such  case  is,  "Not  guilty  within  five 
years." 


CHAPTER  XI. 

REMEDIES  TO  REAL  PROPERTY— CONTINUED^  i 

We  shall  now  proceed  to  the  writ  of  right,  called  in  the  old  law-language 
the  mere  writ  of  right.     This  is  the  only  remedy  Used  in  Virginia  for  the 
recovery  of  an  estate  in  fee-simple,  where  the  right  of  entry  has  been  bar- 
*  The  liability  is  merely  personal,  and  does  not  extend  to  executora.    1  Barn.  &.  Cvcs.  281 


C"AP.  11.]  WRIT  OF  RIGHT.  179 

red  by  lapse  of  time,  or  otherwise,  so  as  to  render  the  action  of  ejectment 
inappropriate  to  the  case.  "  This  mere  writ  of  right  is,  in  its  nature,  the 
highest  writ  in  the  Kiw,  and  lieth  only  of  an  estate  in  fee-simple,  and  not 
for  him  who  hath  a  lesser  estate.  At  common  law  it  lay  concurrently  with 
all  other  real  actions  for  the  recovery  of  a  fee  ;  and  it  also  lay  after  them, 
being  an  appeal  to  the  mere  right,  when  judgment  had  been  had  as  to  the 
possession,  in  an  inferior  action.  And  in  such  cases,  and  where  the  right 
of  possession  is  lost  by  length  of  time,  there  is  no  other  choice  ;  this  is 
then  the  only  remedy  that  can  be  had  ;  and  it  is  of  so  forcible  a  nature,  that 
it  overcomes  all  obstacles,  and  clears  all  objections  that  may  have  arisen  to 
cloud  and  obscure  the  title.  And,  after  issue  once  joined  in  a  writ  of  right, 
the  judgment  is  absolutely  final ;  so  that  a  recovery  had  in  this  action  may 
be  pleaded  in  bar  of  any  other  claim  or  demand. 

"  In  the  progress  of  this  action,  the  demandant  was  bound  at  common 
law  to  allege  some  seisin  of  the  lands  and  tenements  in  himself,  or  else  in 
some  person  under  which  he  claims,  and  then  derive  the  right  from  the  per- 
son so  seised  to  himself;  to  which  the  tenant  may  answer  by  denying  the 
demandant's  right,  and  averring  that  he  has  more  right  to  hold  the  lands 
than  the  demandant  has  to  demand  them  :  and  this  right  of  the  tenant  be- 
ing shewn,  it  then  puts  the  demandant  upon  the  proof  of  his  title :  in 
which,  if  he  fails,  or  if  the  tenant  hath  shewn  a  better,  the  demandant  and 
his  heirs  are  perpetually  barred  of  their  claim  ;  but  if  he  can  make  it  ap- 
pear that  his  right  is  superior  to  the  tenant's,  he  shall  recover  the  land 
against  the  tenant  and  his  heirs  for  ever." 

The  mode  of  proceeding  in  writs  of  right  has,  in  Virginia,  been  greatly 
changed  and  much  simplified.     See  1  R.  C.  ch.  118. 

Before  this  act  writs  of  right  were  so  complicated  and  hazardous,  that 
they  were  almost  abandoned  here  as  well  as  in  England.  Since  the  reme- 
dy has  been  reformed  and  simplified,  they  have  become  more  frequent  for 
the  trial  of  land  titles.  The  following  commentaries  on  the  different  parts 
of  that  act  may  not  be  without  their  use  to  the  student: 

The  act  provides  (sect.|l,)  that  the  '' claimant  or  demandant  of  an  estate 
in  fee-simple  may  sue  forth  against  the  possessor  or  tenant  a  writ  oi praecipe 
quod  reddat."  Here  observe  that  the  remedy  is  provided  for  the  claimant 
of  the  fee-simple  only,  for  no  person  claiming  title  to  a  limited  estate  can 
maintain  this  action  :  so  that  if  there  be  a  tenant  for  one  thousand  years, 
and  he  is  dispossessed  and  held  out  until  his  right  of  entry,  and  the  pos- 
sessory remedies  are  taken  away,  he  is  without  remedy.  So  it  is  with  a 
tenant  in  dower,  or  of  any  other  particular  estate ;  for  these  are  confined 
to  the  action  of  ejectment  and  the  possessory  remedies  prescribed  by  the 
law,  and  if  they  have  too  long  omitted  to  pursue  them,  they  are  entirely 
without  redress.  It  is  much  to  be  wished  that  the  writ  of  entry  and  as- 
size were  new  modelled  and  simplified,  or  that  a  new  remedy  was  substitu- 
ted for  the  cases  to  which  they  were  applicable. 

As  no  person  can  bring  a  writ  of  right  but  he  who  has  a  fee-simple  es- 
tate, so  this  action  does  not  lie  against  any  other  than  the  tenant  of  the 
freehold  at  the  least.  See  8  Cranch,  242.  2  Saun.  45,  n.  4.  For  as  the 
writ  is  to  recover  the  seisin,  it  must  be  brought  against  him  who  hath  it. 
Thus  if  A  takes  up  my  land  and  obtains  a  patent  for  it,  and  enters  and 
holds  it,  claiming  title,  I  may  bring  a  writ  of  right  against  him  or  against 
any  person  to  whom  he  may  have  conveyed  the  freehold.  So  if  without 
title  he  forcibly  disseises  me,  such  disseisin  vests  the  freehold  in  him,  and 
this  action  lies  after  my  right  of  entry  is  taken  away.  But  if  in  either  ot 
these  cases  he  leases  for  years,  1  cannot  bring  this  writ  against  the  tenant. 
It  must  be  brought  against  the  landlord  or  holder  of  the  freehold  himself, 
and  a  recovery  against  him  is  conclusive  as  to  those  holding  under  him  as 


180  WRIT  OF  RIGHT.  [BOOK  3. 

lessees  for  years.  If,  therefore,  a  writ  of  right  be  brought  against  one  who 
is  not  tenant  of  the  freehold,  the  defendant  may  plead  that  he  is  "  not  ten- 
ant, and  disclaim  the  tenancy,"  upon  which,  if  true,  the  judgment  must  be 
rendered  in  his  favor,  as  the  demandant  cannot  recover  tliat  from  him  which 
he  has  not.  But  the  judgment  in  such  case  is  only  "that  the  tenant  go 
thereof  without  day."  Booth  on  Real  Actions,  29.  Litt.  §  691.  And 
this  judgment  not  being  upon  the  "  mise  joined  on  the  mere  right,"  does 
not  affect  the  demandant's  right,  but  he  may  immediately  enter  upon  the 
lands.  See  2  Call,  585,  citing  Co.  Litt.  363,  a.  Where  the  writ  was  brought 
against  a  tenant  who  had  only  seisin  for  life,  he  "  prayed  him  in  the  rever- 
sion in  aid  to  defend  the  inheritance  of  the  land."  See  3  B.  C.  300.  2 
Saun.  45,  c.  in  note.  The  form  of  the  aid  prayer,  and  the  proceedings 
thereon  to  judgment,  may  also  be  there  seen.  By  our  law  (1  R.  C.  ch  128, 
§  34,)  all  essoigns,  views,  and  vouchers  are  taken  away,  but  nothing  is  said 
of  aid  prayers.  I  have  never  known  an  instance  of  a  writ  of  right  against 
a  tenant  for  life  alone,  and  have  no  knowledge  of  any  decision  as  to  the 
right  of  the  tenant  to  pray  in  aid  since  the  passage  of  the  act  above  men- 
tioned. In  the  case  of  Rowe  vs.  Smith,  (1  Call,  487,)  the  writ  was  brought 
jointly  against  the  tenant  for  life  and  the  reversioner,  without  objection  be- 
ing made  to  joining  them.     None,  I  presume,  would  lie. 

The  act  provides  that  the  writ  shall  issue  "from  any  court  having  juris- 
diction." The  writ  of  right  is  a  local  action,  and  must  be  brought  in  the 
county  court  or  superior  court  of  that  county  where  the  land  lies.  This 
act  provides  for  the  process  where  the  defendant  cannot  be  found  therein. 
Sect.  2. 

The  writ  (the  form  of  which  is  set  forth  in  the  act)  directs  the  sheriff  to 
command  the  defendant  "  to  render  unto  the  demandant  without  delay 

tenement  containing acres  of  land,  and  if  he  fails  to  do  so,  then 

to  summon  him  to  appear  before  the  court  at  the  next  term  to  shew  why 
he  has  not  done  it."  Several  tenants  claiming  by  distinct  titles,  and  hold- 
ing by  distinct  possessions,  should  not  be  joined  in  the  same  writ,  and  if 
they  are,  the  matter  may  be  pleaded  in  abatement. 

It  is  not  necessary  that  the  blank  in  the  writ  should  be  filled  with  the 
precise  quantity  of  land  to  which  the  demandant  is  entitled.  He  may  re- 
cover less  than  his  demand,  but  upon  general  principles  he  cannot  recover 
more.     See  1  Mun.  162.     2  Mun.  167.     See  2  Ran.  68. 

The  writ  is  returnable  as  other  writs,  and  proceedings  may  be  had  at  the 
rules.     1  Call,  429. 

The  count  (for  so  the  declaration  in  a  writ  of  right  is  called)  is  in  the  fol- 
lowing form,  prescribed  by  the  act  itself: 

—  County,  to  wit :  A.  B.  by  F.  G.  his  attorney,  demands  against 

C.  D. tenement, containing  ■  of  land,  with  the  appurte- 
nances, in  the  county  of  E.  and  bounded  by .     And  lohcreupon  the 

said  A.  B.  sailh  that  he  hath  right  to  have  the  tenement  aforesaid,  with  the 
appurtenances,  and  offcreth  proof  that  such  is  his  right. 

Here  observe  1st.  The  name  of  the  county  being  written  in  the  margin 
of  the  count,  was  in  the  case  of  Turbcrvillc  vs.  Long,  considered  after  ver- 
dict as  supplying  the  omission  to  lay  a  formal  venue,  and  important  in  sup- 
porting the  action.  Regularly  it  should  be  set  forth  in  the  body  of  the 
count  that  the  land  lay  within  the  county  where  the  suit  was  brought.  3 
H.  &  M.  e309. 

2d.  If  the  demandant  claims  as  heir,  it  is  not  necessary  that  he  should 
set  forth  his  ancestor's  intestacy.  I  Call,  438.  But  he  ought  by  common 
law  to  shew  how  he  is  heir.  2  Saun.  45,  a.  Quare,  if  this  be  not  necessa- 
ry even  now. 


CHAP.  11.]  WRIT  OF  RIGHT.  181 

3d.  If  the  demandant  fails  to  set  forth  in  liis  count  the  boundaries  of  the 
land  claimed  by  him,  it  will  be  error  even  after  a  verdict :  1  Call,  484  : 
though  it  must  be  observed  that  the  statute  of  Jeofails  extends  to  writs  of 
right.  Sec  3  H.  &  M.  309.  If  several  tenements  bo  demanded  in  the  same 
count,  the  contents,  situation,  and  boundaries  of  each  must  be  inserted. 

It  seems  to  be  sufficient  in  describing  the  boundaries,  to  refer  with  proper 
certainty  to  water  courses  and  adjoining  lands,  without  a  minute  specifica- 
tion of  courses  and  distances.     3  H.  &.  M.  314. 

In  order,  however,  to  enable  the  demandant  to  set  forth  the  boundaries 
with  certainty,  a  survey  is  usually  made  in  the  cause  by  consent ;  and  it 
has  been  decided  that  if  the  count  refers  to  the  survey  for  a  description  of 
the  land  claimed,  thus, — "Bounded  as  by  a  survey  made  in  the  cause,"  it 
is  sufficient.  So  if  it  describes  the  lands  demanded  as  part  of  a  larger  tract, 
setting  out  the  boundaries  of  such  larger  tract,  and  the  plea  reiterates  the 
description  in  the  same  terms,  and  the  verdict  ascertains  the  boundary,  the 
generality  of  the  count  is  cured.     2  Mun.  167. 

4th.  By  comparing  this  count  with  the  count  given  us  by  Mr.  Black- 
stone  in  his  appendix,  we  shall  find  they  are  essentially  different.  In  Eng- 
land the  demandant  counts  on  his  seisin,  or  that  of  some  of  his  ancestors, 
"  as  of  fee  and  right,"  by  taking  the  esplees  [profits]  thereof.  Here  the 
count  says  nothing  of  seisin,  whence  it  might  have  been  inferred  that  the 
demandant  need  not  under  this  act  prove  seisin  in  himself  or  those  under 
whom  he  claims.  But  the  contrary  has  been  expressly  adjudged.  8  Cranch, 
244,  245.  Another  act,  however,  provides  that  "  actual  possession  need 
not  be  proved  to  maintain  a  writ  of  right."  1  R.  C.  ch.  128,  §  90.  Some 
difficulty  has  been  suggested  as  to  the  mode  of  reconciling  this  act  witli 
the  statute  of  limitations,  which  provides  that  any  person  may  maintain  a 
writ  of  right  upon  the  possession  or  seisin  of  his  ancestor  within  twenty- 
five  years,  and  upon  his  own  possession  or  seisin  within  twenty  years.  I 
would  venture  to  suggest  that  the  difficulty  is  to  be  solved  by  an  attention 
to  the  diflerence  between  actual  possession  and  many  kinds  of  seisin  which 
are  considered  seisin  in  deed,  though  they  fall  short  of  actual  possession. 
Thus  the  patent  of  the  commonwealth  conveys  not  merely  seisin  in  law, 
but  seisin  in  deed.  8  Cranch,  229,  &c.  So  of  a  bargain  and  sale  ;  and  he 
who  has  possession  by  his  tenant  for  years  has  seisin  in  deed,  though  not 
actual  possession. 

The  different  grades  of  seisin  or  possession  may  be  thus  illustrated  : — If 
my  ancestor  dies  and  a  stranger  immediately  enters  on  my  inheritance, 
claiming  it  as  his  own,  and  is  an  abator,  and  I  have  no  seisin  :  I  have  only 
a  right  of  action.  If  there  be  no  such  abatement,  I  have  immediate  seisin 
in  law,  though  I  have  not  actual  possession.  If  my  ancestor  leaves  two 
tracts  of  land  in  the  same  county,  and  I  enter  on  one  in  the  name  of  all,  I 
have  seisin  in  deed,  though  of  only  that  one  have  I  actual  possession.  So 
if  for  fear  of  harm  I  dare  not  enter,  yet  if  I  approach  and  claim  the  land,  I 
have  seisin  in  deed,  though  not  actual  possession.  Litt.  §  417,  418,  419. 
8  Cranch,  246.  Hence  I  presume  it  is  essential  to  his  success  that  the  de- 
mandant should  shew  a  seisin  in  himself,  or  those  under  whom  he  claims. 
That  we  have  no  authority  on  the  subject,  arises  perhaps  from  the  fact  that 
the  demandant  usually  traces  his  title  up  to  the  commonwealth,  whose  pa- 
tent, if  it  conveys  title  at  all,  conveys  also  the  necessary  spisin  in  deed.  It 
may  be  remarked,  however,  that  if  the  demandant  can  shew  uninterrupted 
seisin  for  fifty  years  in  himself  or  those  under  whom  he  claims,  it  is  unne- 
cessary to  trace  his  title  farther  back,  since  that  is  of  itself  a  good  title. 

5th.  If  any  portion  of  the  land  described  in  the  count  in  a  writ  of  right 
is  included  in  the  patent  under  which  the  defendant  claims,  it  is  sufficiently 
identified.    2  Ran.  68. 


182  WRIT  OF  RIGHT.  [  liOOK  3. 

The  act  proceeds:  "To  wliich  count  the  tennnt  may  plead  in  this  form, 
or  tliis  effect :  and  the  aforesaid  C.  D.,  by  U.  I.  his  attorney,  comelh  and.  de- 
fendelh  the  right  of  the  said  A.  B.,  when  and  lohere  it  behoovefh  him,  and  all 
that  concerncth  it,  and  ivhatsoevcr  he  ought  to  defend,  and  chiefly  the  tenement 
aforesaid,  with  the  appurtenances  as  of  right,  namely tenement,  con- 
taining   of  land  in  the  county  0/ E.  and  bounded  by ,  and  put - 

ieth  himself  upon  the  assize,  and  prayeth  recognition  to  be  made,  whether  he 
hath  greater  right  to  hold  the  tenement  aforesaid  with  the  appurtenances,  as 
he  now  holdeth  it  (or  them)  or  the  said  A.  B.  to  have  it  as  he  now  demandeth 
it  (or  them." ) 

And  to  such  plea  the  replication  shall  be  in  this  form,  or  to  this  effect: 
"And  the  aforesaid  A.  B.  in  like  manner  putteth  himself  upon  the  assize,  and 
prayeth  recognition  to  be  made  whether  he  hath  greater  right  to  hold  the  te- 
nement aforesaid  as  he  demandeth,  or  the  said  C.  D.  as  he  holdeth  it  (or 
them.") 

The  plea  here  given  puts  the  contest  upon  the  simple  question  of  which 
hath  best  right  to  the  land,  the  demandant  or  the  tenant.  By  it  the  tenant 
lenders  the  mise  (or  issue)  upon  the  mere  right.  But  he  is  not  precluded 
hereby  from  pleading  other  matters,  as  he  might  have  done  at  common  law, 
notwithstanding  the  subsequent  provision  that  upon  the  general  issue  or 
mise  he  may  give  in  evidence  any  thing  which  might  have  been  specially 
pleaded  ;  for  these  provisions  are  cumulative,  not  exclusive.  2  Call,  589, 
593.  8  Cranch,  244.  Thus  it  is  admitted  he  may  plead  any  matter  in 
abatement,  such  as  "non-tenure,"  "joint  tenure,"  "  several  tenure,"  "sole 
tenure,"  and  "never  tenant  of  the  freehold."  In  like  manner,  until  a  late 
act,  he  might  have  pleaded  that  the  plaintiffs  were  tenants  in  common,  and 
so  incapable  of  joining  in  a  writ  of  right.     Sess.  Acts,  1823. 

A  much  litigated  question,  however,  has  arisen  on  this  point ;  whether 
the  defendant  can  give  matter  of  abatement  in  evidence  on  the  mise  joined 
on  the  mere  right.  In  Hyers  rs.  Wood,  (2  Call,  594,*)  it  was  decided  that 
he  might.  In  Green  vs.  Liter,  (8  Cranch,  229,)  the  contrary  is  expressly 
adjudged  ;  and,  I  conceive,  upon  good  reason.  For,  besides  the  technical 
objection  that  the  plea  of  the  mere  right  is  a  waiver  of  the  matter  of  abate- 
ment, the  admission  of  such  evidence  is  extremely  inconvenient,  and  in 
conflict  with  every  rule  of  law.  Thus,  when  the  demandant  comes  prepar- 
ed only  to  assert  his  owm,  and  to  contest  the  right  of  the  tenants,  they  meet 
him  with  evidence  of  non-tenure  or  several  tenancy.  By  so  doing  the  de- 
mandant is  completely  surprised.  It  is  partly  to  prevent  this  surprise  that 
the  law  confines  the  evidence  of  each  party  to  the  issue  joined  between 
them  and  requires  the  allegata  et  probata  to  correspend.  These  principles 
are  broken  down  by  this  proceeding.  Moreover,  this  special  evidence  be- 
ing given  to  the  jury,  they  are  to  pronounce  upon  it  without  the  usual  sanc- 
tion of  their  verdict— a  juror's  oath  ;  for  their  oath  to  decide  truly  upon  the 
mere  right,  can  by  no  forced  construction  embrace  this  matter  of  abatement, 
and  thus  they  determine  the  question  without  being  sworn  to  decide  it. 
Besides,  if  the  jury  find  a  general  verdict  according  to  the  charge  prescribed, 
then,  it  seems,  an  absolute  judgment  in  bar  must  be  given  in  favor  of  the. 
tenant,  that  he  shall  hold  the  lands  quit  of  the  demandant  forever,  although 
he  has  shown  or  pretended  no  title  to  them.     Or  if  the  jury  find  a  special 

*  I  do  not  mean  to  qiiostion  tlte  justice  of  tlie  decision  in  this  case,  but  only  tlie  principles  upon 
which  it  was  decided  ;  for  I  agree  that  the  matter  given  in  evidence  was  proper  evidence  on  behalf 
of  the  tenants,  hut  not  as  evidence  n( iion-tenure.  'I'he  demandant  claimed  the  '.and  the  tenants  held  : 
tiie  tenants  alleged  that  his  patent  did  not  cover  their  land,  but  land  elsewhere  ;  ilie  evidence  did  not 
go  to  show  that  they  did  not  hold  what  he  demanded,  but  that  his  land  lay  elsewhere,  and  so  he  de- 
manded what  he  had  no  right  to  recover.  See  Judge  'Lyon's  opinion  and  remark,  2  Call,  586. 
Noil-tenure,  therefore,  was  not  a  plea  that  would  have  embraced  their  case.  The  evidence  'liat  thft 
demandant's  patent  covered  land  elsewhere,  was  directed  to  the  question  of  mere  right  to  the  lanil 
demandeij,  and  waa  therefore  proper. 


CHAP. 


11.]  WRIT  OF  RIGHT.  183 


verdict  as  to  the  non-tenure,  &c.,  as  it  is  intimated  they  should,  then  the 
verdict  will  be  upon  one  point,  whereas  tlicy  were  sworn  upon  another,  and 
tJius  the  demandant  may  be  defeated  lor  want  of  that  security  for  a  juror's 
justice  and  impartiality  which  his  oath  affords.  From  these  and  other  con- 
siderations, I  always  inclined  to  think  that  the  decision  in  Green  vs.  Liter 
should  prevail,  and  that  the  privilege  of  giving  special  matter  in  evidence 
must  be  interpreted  to  relate  to  matter  which  goes  to  bar  the  plaintiff's  de- 
mand, and  not  merely  to  abate  his  writ. 

But  this  matter  is  now  put  at  rest  by  the  case  of  Boiling  vs.  the  Mayor  of 
Petersburg,  3  Ran,  503,  followed  by  a  case  in  6  Ran.  IIO,  by  which  cases 
that  of  Hyers  vs.  Wood  is,  as  to  this  matter,  wholly  overruled.  In  the  first 
of  these  cases,  the  reasoning  of  the  court  is  strongly  in  unison  with  that 
which  I  have  pursued.  See  the  latter  case  as  to  the  rules  governing  the 
plea  in  abatement. 

The  plea  in  abatement  must  in  this,  as  in  every  other  action,  be  put  in 
upon  oath.  1  R.  C.  ch.  128,  §  33.  And  farther  to  prevent  delay,  all  es- 
soigns,  views,  and  vouchers,  are  expressly  taken  away  by  the  same  clause. 
After  one  imparlance,  (or,  I  presume,  upon  the  expiration  of  the  rule  to 
plead,)  unless  the  tenant  plead  non-tenure,  joint-tenancy,  or  several  tenan- 
cy in  abatement,  and  even  then  after  the  plea  shall  be  overruled,  he  shall 
put  himself  on  the  grand  assize,  and  the  mise  shall  be  joined  upon  the 
mere  right,  or  the  general  issue  shall  be  joined,  as  the  case  shall  require. 
No  excuse  for  default  is  admissible,  except  non-summons,  and  upon  that 
being  allowed,  the  tenant  may  imparls,  and  must  then  plead  in  abatement 
or  put  himself  upon  the  grand  assize  or  upon  the  country.  Ibid,  §  34.  If 
the  tenant  pleads  that  he  is  jointly  seised  with  another  person  not  named 
in  the  writ,  and  it  be  found  for  him,  the  writ  shall  be  abated.  If  found 
against  him,  the  demandant  has  peremptory  judgment  for  his  seisin,  and 
double  damages.     The  plea  must  be  filed  on  oath.     Ibid,  §  35. 

The  plea  o[  non-tenure  of  parcel  of  the  lands  at  common  law,  abated  the 
writ  for  the  whole.  It  now  abates  ii  only  for  the  quantity  of  which  non^- 
tenure  is  alleged.     Ibid,  §  3G. 

In  writs  of  right  all  the  pleadings  must  be  in  writing,  and  in  regular  form., 
to  authorise  a  judgment  thereon.  2  H.  &  M.  IGl.  If,  however,  the  record 
in  a  writ  of  right  states  that  the  demandant  "replied  generally,"  the  court 
will  presume  after  a  verdict  that  the  replication  was  filed  regularly  and  ia 
writing.     See  2  Leigh,  653. 

The  demandant's  counsel  should  always  take  care  that  the  plea  offers  a 
full  defence.  For  if  the  count  be  in  behalf  of  two  or  more  demandants,  and 
the  plea  "defends  (i.  e.  denies)  the  right"  of  only  part  of  them,  it  is  insuf- 
ficient; and  though  upon  the  trial  the  demandant  should  get  a  verdict  in 
his  favor,  it  would  be  set  aside  and  a  repleader  awarded.  5  Mun.  98.  In 
like  manner,  particular  attention  should  be  paid  to  the  description  of  the 
land  in  the  plea,  for  if  the  land  described  in  the  plea  does  not  correspond 
with  that  demanded  by  the  count,  or  is  not  comprehended  by  it,  the  parties 
will  not  be  fairly  at  issue,  and  even  after  a  verdict  the  proceedings  will  be 
set  aside  and  a  repleader  awarded. 

Under  this  act,  at  the  trial  any  matter  may  be  given  in  evidence  which 
might  have  been  specially  pleaded.  The  better  opinion  is,  that  this  clause 
is  not  compulsory  and  exclusive,  but  only  cumulative ;  so  that  though  the 
defendant  could  formerly  only  avail  himself  of  special  matter  of  defence  by 
pleading  specially,  he  may  now  either  plead  it  specially  or  give  it  in  evi- 
dence. In  Hyers  vs.  Wood,  as  we  have  seen,  this  provision  is  considered 
as  extending  to  pleas  in  abatement.  In  Green  vs.  Liter  it  is  confined  to 
matter  in  bar.  The  latter  opinion  seems  sustained  by  the  recent  case  be* 
fore  cited.    3  Ran.  063. 


184  WRIT  OF  RIGHT.  [  book  3. 

At  common  law  every  thing  might  have  been  given  in  evidence  upon  the 
mise  joined,  vvliich  might  have  been  pleaded  in  bar,  except  collateral  war- 
ranty. Booth,  98,  11'2.  2  Saun.  45,  f.  Under  our  act,  if  the  heir  of  A 
brings  a  writ  of  right  for  lands  belonging  to  himself  in  reversion,  and  which 
A  had  aliened  with  warranty,  the  alienation  with  warranty  is,  I  presume, 
good  evidence  to  bar  him  to  the  value  of  the  assets  descended.  See  1  R. 
Q.  ch.  99..  §  21. 

Where  the  defendant  or  tenant  has  joined  the  mise  upon  tlie  mere  right, 
the  introduction  of  evidence  is  commenced  on  his  part,  "because  (it  is 
said)  the  mise  is  prayed  for  and  joined  by  him."  The  reason  would  rather 
seem  to  be  this  :  At  common  law  the  demandant  counted  on  his  own  or  his 
ancestor's  seisin.  The  defendant  was  thus  called  upon  to  render  up  the 
lands,  of  the  right  to  which  the  demandant  once  had  the  strong  evidence 
derived  from  possession.  This  seisin  the  tenant  might  indeed  deny  "  by 
tendering  a  demimark  to  inquire  of  the  seisin."  And  if  he  did  so,  he  put 
the  proof  of  the  seisin  on  the  demandant,  who  thus  had  the  affirmative  in 
issue,  and  was  of  course  entitled  to  begin  with  his  evidence,  and  to  com- 
mence and  conclude  the  argument  of  the  case,  according  to  a  general  rule, 
which  always  imposes  the  omis  probandi  on  him  who  holds  the  affirmative, 
and  gives  him  the  concomitant  advantage  of  beginning  and  concluding  the 
case.  See  2  Saun.  45,  f.  But  where  the  tenant  did  not  tender  the  demi- 
mark to  inquire  of  the  seisin,  and  did  not  put  the  seisin  in  issue,  but  ten- 
dered the  mise  upon  the  mere  right,  he  admitted  the  seisin.  The  substance 
of  the  plea  indeed  is,  that  though  he  admits  the  demandant  or  his  ances- 
tors had  seism,  yet  he  is  prepared  to  shew  that  he  himself  hath  better  title. 
Unless  he  shews  this,  the  demandant  is  entitled  to  regain  the  seisin  which 
it  is  admitted  he  once  had,  provided  always  that  the  can  show  the  best  title. 

The  tenant,  therefore,  having  rested  the  defence  on  his  better  title,  which 
he  asserts  and  offisrs  to  prove,  has  the  affirmative  in  issue,  and  therefore, 
according  to  the  rule  just  mentioned,  must  be  the  first  to  introduce  his  evi- 
dence, and  must  open  and  conclude  the  argument. 

But  however  fair  the  foregoing  deductions  may  seem,  from  the  doctrines 
of  the  common  law  as  modified  by  our  statute,  some  recent  decisions  have 
established  principles  apparently  in  collision  with  them.  Thus  it  is  the 
opinion  of  the  Supreme  Court  of  the  United  States,  that,  although  it  is  not 
necessary  to  prove  an  actual  entry  under  title,  or  actual  taking  of  the  es- 
plees,  yet  a  constructive  seisin  at  least  must  be  shewn  in  the  demandant,  or 
he  will  fail.  8  Cranch,  239.*  The  tenant  may,  therefore,  in  his  defence, 
shew  that  the  demandant  had  no  such  actual  or  constructive  seisin  in  deed  ; 
for  the  seisin  of  the  tenant  is  a  sufficient  title  for  him  until  a  better  is  shewn 
by  the  demandant.  7  Wheat.  27.  3  Ran.  570.  This  seisin  of  the  de- 
mandant must  be  a  seisin  in  deed  of  the  fee.  But  it  is  said  there  may  be 
an  actual  seisin  in  deed,  and  a  constructive  seisin  in  deed  ;  the  first  consti- 
tuted by  the  pedis  positio,  and  the  second  by  a  patent  or  deed  from  one 
liaving  seisin  ;  and  either  will  support  the  action.  3  Ran.  570.  But  if  the 
demandant  has  neither,  he  must  fail. 

Again  it  is  said,  the  mise  joined  on  the  mere  right  puts  in  issue  this  ques- 
tion, "  which  party  has  the  better  title?"  It  is  a  comparison  of  the  rights 
in  controversy.  If  the  demandant  prove  an  actual  seisin  in  deed,  the  tenant 
cannot  defend  himself  by  shewing  a  better  outstanding  title  in  a  third  per- 
son ;  because  this  is  not  in  the  issue,  and  does  not  disprove  the  actual  sei- 
sin of  the  demandant.  But  where  the  demandant  relies  on  a  constructive 
seisin  in  deed  only,  the  tenant  may  shew  an  elder  patent  or  better  title  in 

*  It  seems  tliat  a  drviscc  cnnnol,  i)j'  the  Engliali  law,  maintain  a  writ  of  riglit  upon  tlie  seisin  of  tlic 
tlcvisor.  See  2  Sell.  &  Lef.  101,  iiSi.  'I'he  reason  1  presume  is,  tiiat,  by  ilio  English  statute  of  wills, 
a  right  of  entry  is  not  devisable,  o  E.  552,  This  reason  would  not  apply  to  our  act,  the  terms  of 
which  are  very  broad. 


CHAP.  11.]  WKIT  OF  RIGHT.  185 

another;  because  this  destroys  the  constructicc  scibin,  and  leaves  the  de- 
mandant no  [M-ouud  to  stand  on  ;  the  tenant's  actual  seisin  suflicino-  for  his 
protection  until  a  better  title  be  shewn.     3  Ran.  and  7  Wheat,  ubi  supra. 

The  demandant  may  establish  liirs  claim  either  by  exhibiting  a  connected 
chain  ofti'ile  IVoin  the  commonwcaltli  down  to  himaell',  or  by  relyiu"-  on  the 
length  of  possession  of  himself  and  tliose  uiider  whom  lie  claims.  In  the 
first  case  the  chain  of  title  must  be  perfectly  connected  and  unbroken;  be* 
g'lnnin'^  with  iho  commonweakh's  pateni,  and  brought  down  to  the  dcman- 
tlaiit,  by  deed,  devise,  or  descent,  iVom  one  owner  to  another,  in  regular 
succession.  In  the  latter  ca^c  he  proves  that  he  himself,  or  some  person 
Uiider  whom  he  claims,  had  enjoyed  an  uijiulcrrupted  possession  for  fifty 
years;  and  if  he  rests  upon  the  uninterrupted  possession  of  another  person, 
he  traces  liie  title,  by  deed,  devise,  or  descent,  from  such  person  to  him- 
self, and  produces  the  iustrumcuts  and  evidciices  which  establish  such 
light. 

The  tenant,  on  the  other  hand,  produces  the  evidence  of  his  title  in  the 
like  manner,  though  the  want  of  a  link  in  his  chain  of  title  is  not  fatal  if  he 
his  enough  to  shew  that  the  demandant  has  no  title,  provided  the  deman- 
daiit  had  only  constructive  seisin.  But  if  the  demandant  proves  an  actual 
Hcisin,  the  tenant  must  shev.'  a  better  title  in  himseli'  than  in  the  deman- 
tlant. 

The  tenant,  moreover,  may  defend  h.imse'f  by  the  statute  of  limitations 
without  pleading  it.  That  siatUiO  provides  that  writs  of  right  may  be  main- 
tained upoii  one's  own  possession  within  thirty  years,  and  upon  the  pos- 
session of  one's  ancestor  within  fiily  years,  and  not  after;  with  a  proviso^ 
however,  (1  R.  C.  ch.  I2S,  §  IJ,)  excepting  from  the  computation  certain 
periods  of  time  during  the  revohilioiary  war,  air.ounting  to  something  moro 
than  five  years.*  This  proviso,  I  presume,  was  operative  not  longt-r  than 
about  the  year  1S30.  This  clause  of  the  statute  coiitains  no  saving  in  be- 
IfdVi  oriu/anls,  femes  coveii,  non  compos,  beyond  sea,  or  otherwise,  it  having 
been,  I  presume,  the  intention  of  the  legislature  to  make  an  undisturbed 
possession  of  half  a  century,  a  complete  title  against  all  tlie  world.  If, 
liowever,  cither  party  is  an  infant,  j'cine  covert,  or  v.on  couipor,  when  tho 
judgment  is  rendered,  he  may  bring  a  new  action  within  five  years  after  the 
disability  removed.     1  R.  C.  ch.  IIS,  §  5. 

The  protection  of  this  statute,  however,  is  never  extended  to  mere  intru- 
ders without  pretence  of  title,  nor  to  those  called  squatters  in  the  dialect  of 
the  western  countries.  See  Adams  on  Ejectment.  See  also  I  John.  R. 
]-38.  2  Id.  230.  8  Id.  -227.  9  Id.  102,  IGS,  ISO.  12  Id.  368.  10  Id. 
475.  13  Id.  553.  1  Wh.  513.  1  Cooke's  Ten.  Rep.  356.  Nor  does 
the  party  in  possession  acquire  title  t'nercby,  however  great  its  duration, 
unless  it  be  an  adversary  possession.     9  Wheat.  211,  288. 

A  special  verdict  may  be  found  where  llie  mise  is  joined  upon  the  mere 
right.  1  Call,  439.  A  new  trial  may  also  be  gianted,  or  a  juror  withdrawn, 
as  in  other  cases. 

So,  too,  the  parties  may  agree  a  case,  or  one  may  demur  to  the  testimony 
of  the  other;  and  judgment  will  be  given  a^^ainst  tho  demandant  unless 
the  testimony  stated  in  the  deuiurrer  shews  hi:n  to  have  good  title  in  him- 
self; for  he  must  recover  by  the  strength  of  iiis  own  title;  and  nulil  he 
shews  a  good  one,  tiie  possession  of  tiie  tenant  gives  the  best  right.  2  Call, 
592.  But  this  must  be  understood  with  tiie  qualifications  already  mention- 
ed, since  an  actual  seisin  in  the  demandant  seems  sufl:icient  to  maintain 

*Tlic  liaiitation  in  writs  of  lislit  id  now  rediicetl  to  Iwcnty-fivc  veins  on  ilic  seisin  or  possession  of 
tlic  aiicesior  or  predecessor,  anil  twenty  jearson  one's  own  seioin;  witli  a  bHving  to  inlanis,  lenu-3 
covert,  persons  imprisoned  or  non-compos,  oi'  live  years  nioie,  aCier  tlieir  disabilities  mnoveri. 
183U,cli.;jO.  Tlicpame  act  lepcais  the  act  of  JSae  so  far  as  it  afletis  realorniixed  actions,  llicieia 
also  a  saving  as  to  lights  of  entry  or  action  already  accrued,  U  commenced  wiiiiiu  two  jears. 

VOL.  2—21 


18G  CAVEATS.  [  BOOK  3. 

his  action,  unless  tliere  be  a  better  title  proved  in  himself  by  the  tenant.    T 
Wheat.  27.     3  Ran.  570. 

By  the  act  which  we  have  been  considering,  the  demandant  may  also  re- 
cover damages.  This  is  an  innovation  on  the  common  law,  by  which  dam- 
ages were  never  given  in  any  species  of  droiturcl  action.  10  Rep  111, 
116,  a.  117.  1  Call,  437.  The  jury  impannelled  to  try  the  title,  assess 
the  damages  under  the  express  provisions  of  this  act. 

The  act  also  provides  that  upon  the  verdict,  or  in  case  of  demurrer,  the 
like  judgment  shall  be  given  as  in  case  of  a  writ  of  right.  That  judgment 
is,  that  the  "demandant  recover  his  seisin  against  the  tenant,  of  the  lands 
and  tenements,  with  the  appurtenances,  to  hold  to  him  and  his  heirs  quit 
of  the  tenant  and  of  his  heirs  forever."  3  Black.  App.  V.  3  Chitty,  664. 
3  Wils.  563.  Tlie  judgment  for  the  tenant  where  he  prevails  is,  that  the 
"  demandant  take  nothing  by  his  writ,  and  for  his  false  clamor  be  in  mercy, 
and  that  the  tenant  go  thereof  without  day,  and  hold  the  lands  and  tene- 
ments aforesaid,  with  the  appurtenances,  to  him  and  his  heirs,  quit  of  the 
said  demandant  and  his  heirs  forever."    3  Chitty,  665.    3  Black.  App.  VI. 

If  the  demandant  is  nonsuit  after  the  mise  joined  on  the  mere  right,  the 
judgment  until  very  recently  was  the  same  as  where  a  verdict  had  been 
found  against  him  on  the  mere  right.  Of  course  it  was  peremptory,  and  a 
perpetual  bar  to  any  future  writ.  2  Saun.  45,  f.  5  Co.  part  2,  85,  b.  Pen- 
ryn's  case,  Vin.  Abr.  Nonsuit  L.  pa.  576.  But  it  was  not  so  where  the  de- 
mandant was  defeated  on  issue  joined  upon  any  collateral  matter.  If  there 
were  several  demandants,  the  nonsuit  of  one  did  not  affect  the  others;  for 
in  real  actions  in  such  case  he  may  be  summoned  and  served.  Co.  Litt. 
139,  a. 

The  doctrine  that  a  nonsuit  is  a  peremptory  bar,  is  now  changed  by  the 
act  1823,  ch.  24,  by  which  it  is  enacted  that  a  nonsuit  in  a  writ  of  right 
shall  be  no  bar  to  a  subsequent  action. 

The  proper  execution  for  the  demandant  in  a  writ  of  right  is  an  habere 
facias  seisinajn. 

Where  the  tenant  is  returned  not  found  upon  the  jncBcipe,  certain  pro- 
ceedings arc  prescribed  by  the  act  of  assembly,  already  cited,  to  which  I 
must  content  myself  with  referring  the  student.  So  also  where  the  defiand- 
ant  appears  and  then  makes  default.  I  must  remark,  however,  that  the 
proceedings  in  these  cases  must  be  strictly  regular,  or  the  judgment  will  bo 
reversed  ;  for  these  judgments  do  not  partake  of  the  character  of  judgments 
by  default,  since  there  is  no  actual  notice  to  the  tenant,  by  a  summons  or 
prnocipc  served  on  him. 

The  student  will  find  in  3  Chitty,  most  of  the  forms  in  a  writ  of  right  at 
the  common  law.  They  throw  light  upon  the  principles  of  this  ancient  ac- 
tion. Booth  on  Real  Actions,  an  approved  treatise  on  the  subject,  may  bo 
advantageously  consulted. 

To  what  we  have  said  on  the  subject  of  real  actions,  I  shall  subjoin  a  few 
remarks  as  to  caveats. 

A  caveat  under  our  land  law  (1  R.  C.  ch.  86,  §  38,  42,  &,c.)  is  a  kind  of 
equitable  process  in  the  nature  of  an  injunction  given  to  prevent  a  patent 
from  issuing  until  it  is  determined  by  the  proceedings  on  the  caveat  which 
of  the  contending  parties  has  the  best  right  to  the  emanation  of  the  patent. 
See  3  Call,  501.  But  it  does  not  lie  to  set  a  patent  aside;  1  Wash.  38, 
and  if  the  patent  emanated  while  the  caveat  is  depending,  though  a  court 
of  equity  by  a  bill  filed  for  that  purpose  may  repeal  it  as  surreptitiously  ob- 
tained during  the  pendency  of  the  caveat,  the  court  of  law  ought  to  dismiss 
the  caveat  itself,  as  beinjf  no  longer  a  proper  remedy  for  the  parly,  ibid 
Sec  al'O  1  Call,  200.     6  Munford,  100, 


CHAP.  11.]  CAVEATS.  18t 

Anterior  to  the  rcvisal  of  1819,  it  was  after  much  debate  decided  by  the 
court  of  appeals,  that  the  legislature  having  established  legal  tribunals  for 
deciding  disputes  prior  to  the  issuing  of  a  patent,  if  a  party  omits  to  avail 
himself  of  a  caveat  to  prevent  its  emanation  to  his  antagonist,  a  court  of 
equity  cannot  afterwards  be  called  upon  for  its  aid  to  set  it  aside,  unless  he 
can  shew  that  he  was  prevented  by  actual  fraud  or  accident  from  prosecu- 
ting a  caveat,  or  that  the  grounds  on  which  he  claims  relief  could  not  have 
been  used  by  him  on  the  trial  of  one.  3  Call,  259.  1  Mun.  293.  4  Mun. 
155,  533.  5  Ran.  455.  1  Leigh,  353.  The  act  above  mentioned  has, 
however,  settled  this  matter  otherwise,  by  declaring  that  the  failure  to  caveat 
shall  not  bar  any  person  from  asserting  his  better  right  either  in  a  court  of 
law  or  equity  in  like  manner  as  if  no  remedy  by  caveat  had  been  given  him. 
The  statute  is  not  retroactive.  5  Ran.  453,  509.  Even  before  this  act, 
however,  when  the  rights  of  the  parties  could  not  be  adjusted  in  the  court 
of  caveat,  court  of  equity  had  jurisdiction.  G  Mun.  534.  So  where  there 
iiad  been  forgery  and  fraud  practiced  in  order  to  obtain  the  patent.  1 
Ran.  114. 

It  seems  that  no  person  can  maintain  a  caveat  unless  he  either  designs 
to  procure  the  lands  for  the  person  in  whose  name  the  caveat  is  entered, 
(I  R.  C.  ch.  8G,  §  43,)  or  claims  himself  to  have  a  better  title  than  the  ca-- 
veatee.  See  2  Call,  547.  In  the  latter  case  he  ought  to  shew  his  title.  1 
R.  C.  ch.  86,  §  38.     3  Call,  28. 

The  dismission  of  a  caveat  is  not  binding  unless  it  be  upon  the  merits. 
1  Call,  20G.  6  Mun,  160.  And  a  general  dismissal  does  not  purport  to  be 
upon  the  merits.  3  Cranch,  283.  On  the  trial  of  caveats  on  the  ground 
of  the  plaintiff's  better  right,  the  question  usually  arises  whether  the  entry 
or  location  of  the  defendant  is  sufliciently  specific,  under  the  provision  that 
the  party  taking  up  lands  shall  so  '-direct  the  location  of  his  warrant  as 
that  others  may  be  enabled  with  certainty  to  locate  tlie  adjacent  residuum." 
Under  this  clause  it  is  decided  that  a  reasonable  degree  of  strictness  should 
be  observed  in  all  entries.  1  Call,  206.  3  Call,  28.  1  Mun.  293.  They 
should  have  that  reasonable  certainty  which  would  enable  a  subsequent  lo- 
cator, by  the  exercise  of  a  duo  degree  of  diligence  and  judgment,  to  locate 
ids  own  lands  on  the  adjacent  residuum.  Bodley  and  al.  vs.  Taylor,  5 
Cranch,  191,  224.  Though  by  the  decision  in  this  case,  it  in  terms  ap- 
plies to  Kentucky,  yet  as  it  has  reference  to  the  Virginia  law,  and  expresses 
clearly  and  strongly  what  has  been  decided  in  the  other  cases  cited,  it  may 
be  regarded  as  affording  the  rule  in  Virginia  also. 

In  these  entries  there  is  usually  a  general  and  also  a  particular  descrip- 
tion. The  first  points  out  the  part  of  the  country  where  the  entry  is  made  ; 
the  next  shews  the  particular  land  located  in  that  part  of  the  country. 
Thus,  "  A  B  enters  500  acres  of  land  lying  in  the  county  of  Frederick,  on 
the  west  side  of  Opequon,  on  the  waters  of  Redbud."  This  is  a  general 
description.  It  refers  the  subsequent  locator  to  the  part  of  country  where 
the  location  is  made  :  it  directs  hirn  to  the  Redbud,  on  the  west  side  of  a 
notorious  stream  :  it  sends  him  to  the  neighborhood  to  make  more  definite 
inquiries  ;  and  when  there  he  compares  the  information  he  receives  with 
the  subsequent  part  of  the  entry,  which  describes  the  particular  lands  upon 
Redbud  which  were  the  object  of  the  first  part  of  the  entry.  This  part  of 
the  description  is  more  definite.  It  refers  to  some  specific  part  of  Redbud  ; — 
as,  to  "  its  mouth," — "  its  head  spring," — "  its  north  or  south  side," — "  ad- 
joining lands  of  A  B  on  the  west,"  &c. ;  so  that  by  inquiry  among  settlers 
the  location  may  be  adequately  ascertained.  In  Kentucky,  the  locatio'^ 
under  our  act  have  been  very  loose,  as  may  be  seen  by  reference  to  '^'^'^'1 
tries  which  make  part  of  the  case  of  Bodley  vs.  Taylor,  Such  ^'^•''.le  of  the 
of  a  certificate  of  settlement  of  a  tract  of  land  "  lying  on  the  east  " 


1 88  REPEAL  OF  PATENTS.  [  book  3. 

Buffalo  road  lendiiifr  from  ilieBliie  Licks  to  Limeslnnc.  nine  milen  from  llio 
Lick,  on  (lie  iijjper  inp.d."  And  thon';!i  our  Virgiiiin  Jocalions  are  not  qnifft 
so  inderinite,  tiioy  have  been  var^uc  enough  to  involve  llie  land  titles  in  some 
parts  of  the  country  in  innumorablc  difiicuilies.  See  on  this  subject  1  Call, 
i>Or>.     3  Call,  28.     1  Man.  293.     i  Crancli,  S8,  89. 

The  party  who  desires  to  prevent  the  emanation  of  a  grant  to  another, 
may  enter  a  caveat  in  the  land  office  against  issuing^  any  grant  upon  his  lo- 
cation or  survey  ;  expressing  for  what  caure  the  grant  tdiould  not  issue  :  or 
if  any  person  obtains  a  survey  of  lands  to  which  another  hath,  by  law,  a 
better  right,  the  latter  may  enter  a  caveat  in  like  manner  to  prevent  his  ob- 
taining a  grant  until  (he  title  can  be  determined  ;  but  the  ravcalor  must,  in 
liis  caveat,  express  the  nature  of  the  light  in  which  lie  claims  the  lands. 
He  is  then  to  take,  from  the  register  of  the  land  office,  a,  certified  copy  of 
Jiis  caveat,  and  within  tliirty  days  ^ Re:  wards  must  deliver  it  to  the  clerk  of 
the  superior  court,  or  county  court  of  the  county  in  which  the  land  lies  ; 
]ic  must,  moreover,  obtain  from  the  surveyor  of  the  county,  or  from  the  re- 
gister of  the  land  office,  a  certified  copy  of  the  survey  and  plat,  which, 
within  thirty  days  afier  entering  the  caveat,  must  be  delivered  to  the  clerk 
of  the  court  where  the  suit  is  instituted  ;  and,  on  failure  in  cither  of  thche 
cases,  the  caveat  is  void.  The  clerk,  on  receiving  the  same,  is  to  enter  a 
copy  of  the  caveat  in  his  books,  and  issue  a  summons  reciting  the  can?e 
for  which  the  caveat  is  entered,  riud  requiring  the  defendant  to  appear  on 
the  first  day  of  the  next  court  and  defend  his  right ;  and  on  such  process 
being  returned  executed,  the  court  is  to  proceed  to  determine  the  cause  in 
.1  summary  way,  without  pleadings  in  writing,  impannelling,  and  swearing  a 
jury  for  the  finding  such  facts  as  are  not  agreed  by  the  parties.  A  copy  of 
the  judgment,  if  in  favor  of  the  defendant,  is  to  be  delivered  to  the  jcgis- 
ler  of  the  land  office,  and  thereupon  (he  caveat  is  vacated  ;  but,  if  not  de- 
livered v.ithin  three  months,  a  new  caveat  may  for  that  cause  be  entered. 
Cut,  if  judgment  be  given  in  favor  of  the  plaintiff,  upon  delivering  the 
same  into  t'lo  land  otlice,  together  with  a  plat  and  ccrl'ficate  of  the  survey, 
and  also  producing  a  legal  certificate  of  new  rights  on  liis  ovrn  account,  he 
shall  be  entitled  to  a  grant  of  the  land  ;  but  on  failure  thereof  for  six  month:-, 
after  the  judgment  in  his  favor,  any  other  person  may  enter  a  caveat  for 
Ihal  cause  against  issuing  a  grant ;  uj)on  vihich  cubscquent  caveats  the  same 
proceedings  are  to  be  had,  ioties  (jiiotie",  r.s  upon  the  original.  If  judgment 
be  given  for  the  defendant,  he  is  entitled  to  his  costs ;  if  for  the  plainfifT, 
the  court  in  their  discretion  may  award  costs.  The  court  may  likewise  rule 
the  plaintiff  to  give  security  for  costs,  and,  if  he  fails,  dismiss  his  suit. 

Litimately  connected  with  this  subject  is  that  of  the  repeal  of  letters 
patent,  or  grants  of  the  commonwealth  for  lands,  which  remedy  is  regn- 
latcd  by  a  recent  act.  i  U.  C.  ch.  109.  I  shall  therefore  subjoin  .'?omc  re- 
marks on  the  subject  ol  the  law  and  the  character  of  its  provisions. 

The  student  is  already  aware,  tiiat  where  there  arc  two  claimants  of 
lands  under  the  commonwealth's  patent,  he  whose  patent  is  rf  prior  date 
lias  the  better  legal  title,  which  not  only  will  prevail  over  the  adversary 
title  in  all  courts  of  law,  but  in  courts  of  chancery  also,  unless  the  junior 
patentee  can  siicw  that  he  has  for  some  cause  superior  equity.  This  may 
arise  out  ol'llie  iniquitous  conduct  ol'thc  rejiior  patentee  or  the  irregularity 
of  his  patent,  or  out  of  his  having  himself  a  prior  and  valid  entry,  properly 
pursued,  but  which,  from  causes  coguizable  in  equity,  he  did  not  carry  into 
grant  at  an  earlier  date. 

We  have  just  seen,  however,  that  as  the  law  lias  given  a  rpccific  remedy 
r^  ^veat,  courts  of  equity  have  refiised  to  interfere,  unless  the  party  apply- 
'"§  *^'^ts  aid  can  shew  that  he  was  prevented  by  fraud  or  accident  from 
mosecu  u,  „  caveat  acpording  to  the  provisions  of  the  land  law.     Hence, 


CHAP.  11.]  REPEAL  OF  PATENTS.  18D 

it  may  well  happpii,  tlmt  I  may  be  a  jniiior  claimant  liavin/r  pupoiior  equity 
lo  the  senior  patentee,  bnl  tlial  I  atn  excluded  iVoni  the  benefit  of  that  ccpii- 
ty,  because  I  did  not  caveat.  Tlius  if  mine  n-as  the  prior  entry,  and  was 
.sufucicnliy  certain,  it  must  liave  prevailed  if  I  liad  caveated.  But  as  I  fail- 
ed to  do  80,  I  could  not.  vt-iUiout  shewing  some  excuse  for  my  faihiro,  as- 
sert this  equitable  jjreference  in  a  court  ol"  chancery,  according  to  that  train 
of  decisions,  of  which  the  case  of  Noland  and  Cromwell  mny  be  consider- 
ed the  most  conspicuous. 

If,  however,  I  can  by  any  means  nnnilii'ate  tiic  patent  of  ihc  senior  pa- 
tentee, my  patent  will  then  prevail  and  secure  lo  me  tlie  land.  Now  if  his 
patent  was  irregular  or  voidable  for  any  caupc,  I  may,  under  this  hci,  pro- 
cure its  rescission,  and  then  I  may  procure  a  patent  on  my  equitable  rights, 
or  if  I  have  already  procured  one,  it  will  prevail  over  my  adversary.  To  fa- 
cilitate (he  attainment  of  this  object  was,  I  imagine,  the  object  of  this  act. 
The  court  of  appeals  having  rcliiscd  relief  to  the  parly  who  had  (he  best 
equitable  title,  because  he  had  failed  to  caveat,  the  legislature,  with  a  view 
of  counteracting  this  decision,  so  much  in  conflict  with  the  notions  of  the 
people  in  the  western  part  of  the  commonwealth,  Vilio  arc  most  deeply  con- 
cerned in  land  titles  and  implicated  in  land  disputes,  passed  this  act,  and 
tiie  amended  clause  in  tlie  .section  respecting  caveats.  By  tlic  latter,  they 
declared  that  the  failure  to  caveat  shall  be  no  bar  to  relief  in  equity  ;  and 
by  this  act  they  provided  the  means  of  removing  a  patent, — irregular  or 
void  for  any  matter  not  appearing  on  its  face. — out  of  tlie  way  of  the  equi- 
table claimant.  If,  indeed,  it  be  irregular  or  void  on  its  face,  then  even  in 
a  court  of  law  it  may  be  vacated  or  declared  void  in  the  progress  of  the  trial 
of  an  ejectment  or  writ  of  right,  i  P«Iun.  131,  140.  Oiherwitc  it  cannot. 
G  Mun.  :i-38. 

Having  thus  succinctly  stated  the  cbject  and  ialcnlicn  cf  the  act,  1  will 
now  shortly  advert  to  its  provisions. 

Vv'liere  a  person,  having  a  good  equitable  right  to  lands,  commencing 
prior  to  the  date  of  an  adversary  patent,  desires  to  jirosecute  a  ache  facias 
to  repeal  it,  on  the  ground  that  it  was  obtained  by  ialsc  suggestion,  or  is- 
sued contrary  to  law,  or  to  the  prejudice  of  his  private  right,  he  must  ex- 
hibit his  petition  to  the  court  of  chancery  within  wliich  the  land  lies,  or  to 
the  judgG  thereof  in  vacation,  setting  forth  the  case.  The  judge  there- 
upon directs  a  ceriloran  lo  issue  to  the  register  of  the  land  office,  com- 
manding him  to  certify  if  the  patent  overissued,  and  if  so,  to  certify  a  copy 
thereof.  On  th.e  vetnrn  of  the  writ  and  of  a  copy  cf  the  patent,  the  peti- 
tioner files  his  bill  against  the  other  party  or  parties  concerned,  setting^  ibrth 
(lie  facts,  and  praying  a  repeal  of  tiic  patent.  Thereupon  a  scire  facias  is- 
sues, summoning  the  defendants  to  appearand  answer,  and  shew  cause  a- 
gainst  the  repeal.  After  this  the  cause  proceeds  as  any  othcrbili  in  equity, 
and  on  the  hearing  the  ccurt  denies  the  repeal  cf  the  patent  or  not,  as  may 
seem  fit.  This  is  certif.eJ  to  the  register,  who  enters  the  substance  of  it  in 
the  margin  of  the  original  record  of  the  paten:,  and  tliereupcn  the  patent 
is  declared  null  and  void,  if  such  iias  been  the  sentence  of  the  court.  No 
patent  can  be  repealed  on  these  proceedirigs,  farli'.er  man  the  petitioner's 
right  extends ;  and  every  such  scire  facias  must  have  issued  within  ten 
years  after  the  the  2G(.h  of  February,  ]8iS,,  v.  here  the  patent  assailed  is  an- 
terior to  that  dale.  Where  it  is  po'sterior,  the  scire  facias  must  be  sued  out 
within  ten  years  after  the  date  of  the  patent,  with  a  Hirther  eaving  of  ten 
yearr;  to  inhnts,  femes  covert,  non  compos,  persons  in  prison  or  beyond  sea, 
after  tlieir  disabilities  removed. 

And  licre  we  conclude  Our  view  of  the  remedies  aiforded  by  law,  for  the 
redress  of  such  injuries  to  real  property  as  arise  from  ouster  or  amotion  from 
<he  possession. 


TRESPASS.  [  KOOK  3. 


CHAPTER  XII. 

TRESPASS. 

''  In  the  two  preceding  chapters  we  have  considered  such  injuries  to  real 
property,  as  consisted  in  an  ouster,  or  amotion  of  the  possession.  Those 
which  remain  to  be  discussed  are  such  as  may  be  offered  to  a  man's  real 
property  without  any  amotion  from  it. 

"  The  second  species,  therefore,  of  real  injuries,  or  wrongs  that  affect  a 
man's  lands,  tenements,  or  hereditaments,  is  that  of  trespass.  Trespass,  in 
its  largest  and  most  extensive  sense,  signifies  any  transgression  or  offence 
against  the  law  of  nature,  of  society,  or  of  the  country  in  which  we  live ; 
whether  it  relates  to  a  man's  person  or  his  property.  Therefore  beating 
another  is  a  trespass  ;  for  which  (as  we  have  formerly  seen)  an  action  of  tres- 
pass vi  et  armis  in  assault  and  battery  will  lie :  taking  or  detaining  a  man's 
goods  are  respectively  trespasses;  for  which  an  action  of  trespass  vi  et  ar- 
mis, or  on  the  case  in  trover  and  conversion,  is  given  by  the  law  :  so  also, 
non-performance  of  promises  or  undertakings  is  a  trespass,  upon  which  an 
action  of  trespass  on  the  case  in  assmnpsit  is  grounded :  and,  in  general, 
any  misfeasance  or  act  of  one  man  whereby  another  is  injuriously  treated 
or  damnified,  is  a  transgression  or  trespass  in  its  largest  sense ;  for  which 
we  have  already  seen  that  whenever  the  act  itself  is  directly  and  immedi- 
ately injurious  to  the  person  or  property  of  another,  and  therefore  necessa- 
rily accompanied  with  some  force,  an  action  of  trespass  vi  et  urinis  will  lie: 
but,  if  the  injury  is  only  consequential,  a  special  action  of  trespass  on  the 
case  may  be  brought. 

"  ]]ut  in  the  limited  and  confined  sense  in  which  we  are  at  present  to 
consider  it,  it  signifies  no  more  than  an  entry  on  another  man's  ground  with^ 
out  a  lawful  authority,  and  doing  some  damage,  however  inconsiderable, 
to  his  real  property.  For  the  right  of  mcum  and  tuum,  or  property  in 
lands,  being  once  established,  it  follows  as  a  necessary  consequence  that 
this  right  must  be  exclusive;  that  is,  that  the  owner  may  retain  to  himself 
the  sole  use  and  occupation  of  his  soil :  every  entry  therefore  thereon,  with- 
out the  owner's  leave,  and  especially  if  contrary  to  his  express  order,  is  a 
trespass  or  transgression.  The  Roman  laws  seem  to  have  made  a  direct 
prohibition  necessary,  in  order  to  constitute  this  injury  :  ' qui  alienum  fundum 
ingreditur,  potest  a  domino,  si  is  praeviderit,  prohiberi,  ne  ingrediatur.'  But 
the  law  of  England,  justly  considering  that  much  inconvenience  may  hap- 
pen to  the  owner,  before  he  has  an  opportunity  to  forbid  the  entry,  has  car- 
ried the  point  much  farther,  and  has  treated  every  entry  upon  another's  lands, 
(unless  by  the  owner's  leave,  or  in  some  very  particular  cases,)  as  an  injury 
or  wrong,  for  satisfaction  of  which  an  action  of  trespass  will  lie  ;  but  deter- 
mines the  quantum  of  that  satisfaction,  by  considering  how  far  the  offence 
was  wilful  or  inadvertent,  and  by  estimating  the  value  of  the  actual  damage 
sustained. 

"  Every  unwarrantable  entry  on  another's  soil  the  law  entitles  a  trespass 
b}/  breaking  his  close;  the  words  of  the  writ  of  trespass  commanding  the 
defendant  to  shew  cause  quare  ckmsttm  querenlis  /regit.  For  every  man's 
land  is  in  the  eye  of  the  law  enclosed  and  set  apart  from  his  neighbor's  ; 
and  that  either  by  a  visible  and  material  fence,  as  one  field  is  divided  from 
another  by  a  hedge  ;  or  by  an  ideal  invisible  boundary,  existing  only  in  the 
contemplation  of  law,  as  when  one  man's  land  adjoins  to  another's  in  the 
same  field.  [And  this  I  consider  to  be  still  the  law  notwithstanding  the 
act  2  R.  C.  ch.  219.]  And  every  such  entry  or  breach  of  a  man's  close 
carries  necessarily  along  with  it  some  damage  or  other  ;  for,  if  no  other  spc- 


CHAP.  12.]  TRESPASS.  191 

cial  loss  can  be  assigned,  yet  slill  the  words  of  the  writ  itself  specify  one 
general  damage,  viz.:  the  treading  down  and  bruising  his  herbage.* 

"  One  must  have  a  property  (either  absolute  or  temporary)  in  the  soil, 
and  actual  possession  by  entry,  to  be  able  to  maintain  an  action  of  trespass  : 
or  at  least,  it  is  requisite  that  the  party  have  a  lease  and  possession  of  the 
vesture  and  herbage  of  the  land.  Thus,  if  a  meadow  be  divided  annually 
among  the  parishioners  by  lot,  then  after  each  person's  several  portion  is 
allotted,  they  maybe  respectively  capable  of  maintaining  an  action  for  the 
breach  of  their  several  closes  ;  for  they  have  an  exclusive  interest  and  free- 
hold therein  for  the  time.  But  before  entry  and  actual  possession,  one  can- 
not maintain  an  action  of  trespass,  though  he  hath  the  freehold  in  law.  And 
therefore  an  heir  before  entry  cannot  have  this  action  against  an  abator ; 
though  a  disseisee  might  have  it  against  the  disseisor,  for  the  injury  done  by 
the  disseisin  itself,  at  which  time  the  plaintiff  was  seised  of  the  land  :  but  ho 
cannot  have  it  for  any  act  done  after  the  disseisin,  until  he  hath  gained  pos- 
session by  re-entry,  and  then  he  may  well  nsaintain  it  for  the  intermediate 
damage  done  ;  [G  Ran.  8;]  for  after  his  re-entry,  the  law,  by  a  kind  ofJ«s 
postliminei,  supposes  the  freehold  to  have  all  along  continued  in  him." 

It  is  on  this  principle  of  the  necessity  of  possession  to  sustain  this  action 
that  the  guardian  in  possession,  and  not  the  ward,  must  sue  for  trespass 
done  to  the  premises,  though  the  damages  go  to  the  credit  of  the  ward  in 
the  setttlement  of  the  guardian's  accounts.  6  Ran.  556.  So,  too,  a  land- 
lord cannot,  during  a  subsisting  lease,  maintain  trespass,  though  the  tenant 
may ;  nor  can  the  heir  maintain  trespass  for  an  injury  to  the  lands  held  by 
adoweress  as  her  dower,  or  to  the  mansion  house  and  plantation  while  she 
holds  it,  for  defect  of  assignment  of  dower.  But  if  a  lasting  injury  be  done 
to  the  premises,  as  by  felling  timber,  the  landlord  or  heir  may  maintain  tres- 
pass on  the  case. 

Any  actual  possession  will  maintain  this  action.  It  may  be  brought  by 
tenant  for  years,  at  will,  or  at  sufferance.  A  tenant  may  also  bring  it  against 
his  landlord,  if  he  wrongfully  intrudes  on  him.     1  Chitty,  17G. 

Constructive  possession  is  not  sufficient  to  maintain  trespass  to  real  pro- 
perty. Actual  possession  is  required.  And  hence  it  is  that  where  the  in- 
jury is  done  to  an  heir  or  devisee  by  an  abator  before  he  has  entered,  or  to  a 
lessee  before  he  has  taken  possession,  he  cannot  maintain  this  action,  until 
his  entry. 

If  the  owner  of  land  builds  houses  on  it,  and  leaves  a  street  as  a  public 
highway,  he  may  still  maintain  trespass  for  an  injury  to  the  soil:  as  for 
placing  the  end  of  a  bridge  thereon.     Str.  1004. 

"A  man  is  answerable  for  not  only  his  own  trespass,  but  that  of  his  cattle 
also  ;t  for  if  by  his  indulgent  keeping  they  stray  upon  the  land  of  another, 
(and  much  more  if  he  permits,  or  drives  them  on,)  and  they  there  tread 
down  his  neighbour's  herbage,  and  spoil  his  corn  or  his  frees,  this  is  a  tres- 
pass for  which  the  owner  must  answer  in  damages,  and  the  law  gives  the 
party  injured  a  double  remedy  in  this  case,  by  permitting  him  to  distrcin 

*Iri  an  aclion  of  trespass  for  entering  llie  grounds  of  another  person,  and  sporting  over  them,  the 
jury  may  take  into  consideration,  in  deleriiiiniiig  their  verdict,  not  only  tlio  actual  damage  sustained 
(<y  the  plaintifl',  but  circumstances  of  aggravation  and  insult  on  tiie  part  of  tiie  defendant.  Thus,  in 
the  c^ise  of  Merest  vs.  Harvey,  1  Mar?h.  139.  5  Taunt.  442,  S.  C.  where  tliedolendant,  a  magistrate, 
liad  committed  the  trespass,  before  the  phiintift's  face,  in  defiance  of  notice  that  he  was  a  tres- 
passer, and  had  accompanied  it  ijy  every  kind  of  insuU,  a  verdict  was  given  for  £500  damages,  and 
tlio  court  refused  to  grant  a  new  trial,  on  the  ground  that  they  were  excessive  ;  and  in  that  case,  the 
chief  justice  of  the  common  pleas,  Sir  Vicary  Gibbs,  observed,  that"  he  knew  not  on  what  principle 
a  rule  could  be  granted,  except  that  the  jury  should  only  have  found  to  the  extent  of  the  actual  pecu- 
iiiary  damage  sustained  by  <hc  plaiiitill'."  "Suppose,"  said  he,  J'l  had  a  walk  before  ni.y  house, 
which  I  had  a  pleasure  in  looking  at,  or  walking  on,  would  it  be  allowed  that  a  man  Khoiild  co"|'<j 
ihere  and  walk  to  my  annoyance,  and  then  olfyr  me  u  halfpenny  in  saii^factioi),  ailcsiiig  that  1  uaii 
jccoivcd  no  actual  damage." 

t  Yet  ace  1  Carr  &  I'aync  liG.    1  Buir.  2002, 


192  TRESPASS.  [book  3. 

tlio  cattle  ihiis  damage-feasant,  or  Join^-  damage,  till  the  owner  shall  make 
iiiin  satisCactiou  :  or  eke  by  leaving"  him  to  the  common  remedy  inj'orocon- 
ienlioso,  by  action.  And  the  action  that  lies  in  either  of  these  cases  ol"  tres- 
pass committed  upon  another's  land,  either  by  a  man  himself  or  his  cattle, 
is  the  action  of  trespass  vl  ct  cumis:  whereby  a  man  is  called  upon  to  an- 
swer, qdcire  vi  et  arniis  dausiim  ipsius  A.  apud  B.fiegit,  el  hJuda  ipslus  A. 
ad  valcntiam  centum  sGlidonim  ibidan  nitper  cresctAlla  cum  qaibmdam  ave- 
viis  depastnsfuU,  ccnculcavil,  et  consampslt,  Sfc. :  for  the  law  always  cou- 
ples the  idea  of  force  witii  that  of  intrusion  upon  the  property  of  another. 
And  herein,  if  any  uiuvarraniable  act  of  the  defendant  or  his  beasts  in 
cominir  ui)OU  the  land  be  proved,  it  is  an  act  o[  trespass  for  which  the 
plaintiff  must  recover  some  daniai^es  ;  such,  however,  as  the  jury  shall  think 
proper  to  assess." 

The  action  of  trespass  may  be  brouglit  either  in  the  county  where  the  de- 
fendant resido:i,  as  the  place  of  his  rcsideijcc  yeneraliy  gives  the  jurisdic- 
tion, (I  11.  C.  ch.  1-2S,  §  41,)  or  in  the  county  where  the  land  lies  ;  for  it  is 
provided  that  any  action  may  be  brought  against  a  deii-ndant  in  the  county 
where  the  cause  of  action  arose,  thou^ih  it  be  not  t!ie  county  of  his  resi- 
dence. Ibid.  At  common  law  the  venae  must  be  laid  wiicre  the  land  lies, 
as  the  action  is  local.     Selw.  liDS. 

The  declaration  should  charge  the  trespass  directly,  and  not  by  way  of 
recital,  for  that  is  faulty.  Sehv.  1 109.  It  is  now  cured  by  verdict.  The 
precise  day  oa  which  the  trespass  was  committed  is  immaterial,  thou_2;h  a 
day  should  be  stated  anterior  to  the  commencement  of  the  action.  The 
locas  in  quo  should  be  stated  to  be  the  land,  house,  or  close  of  the  plaintiff', 
and  the  trespass  ihould  be  charged  to  have  been  vi  cl  ctrhils,  and  against 
the  peace;  though  the  omission  is  cured  by  a  verdict.     1 11.  C.  ch.  138, 

§  io;j. 

"  III  trespaisGS  of  a  pcraiinont  uaturo,  v/horc  (he  injitry  is  continually  re- 
newed, (as  by  spoiling  or  consuriiing  the  herbage  with  liic  delendant's  cat- 
tle.) the  declaration  may  allege  the  injury  to  have  been  committed  by  con* 
ihiiuiiiGn  from  one  given  day  to  another,  (which  is  called  laying  the  action 
with  a  voiiliUKando,)  and  the  plalntiir  shall  not  be  conjpellcd  to  bring  sepa- 
rate actions  for  every  day's  separate  o.Tence.  But  v^liere  the  trespass  is  by 
one  or  several  acts,  each  of  which  terminates  in  itself,  and  being  once  done 
cannot  be  done  again,  it  cannot  be  laid  with  a  conliiinando  ;  yet  if  there  be 
repeated  acts  ol  trespass  committed,  (as  cutting  down  a  certain  number  of 
trees,)  they  may  be  laid  to  be  done,  nut  continually,  but  at  divers  days  and 
times  within  a  given  period."* 

This  latter  mode  of  declaring  is  preferable  to  the  ccnunucndo,  because 
there  is  some  nicety  as  to  the  acts  which  may  ov  may  not  be  laid  with  a 
canlinuando.  Tiius  it  is  "erroneous  to  lay  with  a  conlinuaudo  the  cutting  of 
trees,  for  each  act.  of  cutting  is  separate,  distJiict,  and  complete  in  itself. 
The  mode  of  declaring  which  is  now  generally  used,  em!>races  with  equal 
propriety  all  cases.     See  2  Cititty,  oG8,  note  s.     1  Saun.  2i.  n.  1. 

"  In  some  cases  trespass  is  justifiable;  or  rather  entry  on  anoiher's  land 
ov  house  shall  not  in  those  cases  be  accounted  trespass:  as  if  a  man  comes 
thither  to  demand  or  pay  money,  there  payable;  or  to  execute,  in  a  legal 
manncrj  the  process  of  the  law.  Also  a  man  may  justify  entering  into  au 
inn  or  public  house,  without  the  leave  of  the  owner  first  specially  asked; 
because  when  a  man  professes  tlic  keeping  such  inn  or  public  house,  lie 
thereby  gives  a  general  license  to  any  person  to  enter  his  doors.  So  a 
landlord  may  jus^tiiy  entering  to  distrein  for  rent;  a  commoner  to  attend- 
liis  cattle,  commoning  on  another's  land;  and  a  reversioner  to  see  if  any 

*Ttcspags cannot  be  !;iia  wiili  a  cnntinuaudn  so  as  toicacli  licyond ihc coatuiuancc  ol  liie plainlifT* 
posBc^sioo,  uuless  he  ho^i  [cgitiaed  the  posiicseiou.    6  Kuu.  1-J. 


CHAP.  12.]  TRESPASS.  193 

waste  be  committed  on  the  estate  ;  for  the  apparent  necessity  of  the  thing. 
Also  it  hath  been  said,  that,  by  the  common  law  and  custom  of  England, 
the  poor  are  allowed  to  enter  and  glean  upon  another's  ground  after  the 
harvest,  without  being  guilty  of  trespass:  [but  this  notion  no  longer  pre- 
vails. 1  H.  B.  51.]  In  like  manner  the  common  law  warrants  the  hunt- 
ing of  ravenous  beasts  of  prey,  as  badgers  and  foxes,  in  another  man's  land  ; 
because  the  destroying  such  creatures  is  said  to  be  profitable  to  the  public." 
The  English  authorities,  even  of  very  late  days,  affirm  the  right  here  asserted. 
1  T.  R.  334.  But  in  the  exercise  of  it  care  must  be  taken  that  the  party- 
does  not  trample  down  another's  crops,  or  throw  down  the  fences,  or  mali- 
ciously ride  on  his  grounds.  Ibid,  338.  In  Virginia  no  man  can  lawfully 
hunt  upon  the  lands  of  another.     2  R.  C.  ch.  251. 

Besides  the  defences  in  trespass  here  mentioned,  there  are  others  which 
go  to  the  denial  or  justification  of  the  trespass.  Thus  the  defendant  may 
plead  a  right  of  way  or  a  license;  or  he  may  plead  matters  which  go  to 
the  discharge  of  the  trespass,  as  a  release,  accord,  and  satisfaction,  or  a 
former  recovery  ;  or  he  may  plead  that  the  right  was  tried  in  a  former  ac- 
tion and  found  against  the  plaintiff,  and  so  estop  him.  3  E.  346.  So  the 
defendant  may  plead  involuntary  trespass  and  tender  of  amends,  under  the 
act  1  R.  C.  ch.  128,  §  22.  In  cases,  however,  where  a  man  "  misdemeans 
himself,  or  makes  an  ill  use  of  the  authority  with  which  the  law  intrusts 
him,  he  shall  be  accounted  a  trespasser  ab  initio  ;  as  if  one  comes  into  a 
tavern  and  will  not  go  out  in  a  reasonable  time,  but  tarries  there  all  night 
contrary  to  the  inclinations  of  the  owner;  this  wrongful  act  shall  aflTect  and 
have  relation  back  even  to  his  first  entry,  and  make  the  whole  a  trespass. 
But  a  bare  nonfeasance,  as  not  paying  for  the  wine  he  calls  for,  will  not 
make  him  a  trespasser:  for  this  is  only  a  breach  of  contract,  for  which  the 
taverner  shall  have  an  action  of  debt  or  assumj)sit  against  him.  So  if  a 
landlord  distreined  for  rent,  and  wilfully  kill  the  distress,  this  by  the  com- 
mon law  made  him  a  trespasser  ab  initio.  So  if  a  revisioner,  who  enters 
on  pretence  of  seeing  waste,  breaks  the  house,  or  stays  there  all  night ;  or 
if  the  commoner  who  comes  to  tend  his  cattle  cuts  down  a  tree  ;  in  these 
and  similar  cases,  the  law  judges  that  he  entered  for  this  unlawful  purpose, 
and,  therefore,  as  the  act  w-hich  demonstrates  such  his  purpose  is  a  trespass, 
he  shall  be  esteemed  a  trespasser  ab  initio. 

"  A  man  may  also  justify  in  an  action  of  trespass,  on  account  of  the  free- 
hold and  right  of  entry  being  in  himself;  and  this  defence  brings  the  title  of 
the  estate  in  question.  This  is,  therefore,  one  of  the  ways  devised,  since  the 
disuse  of  real  actions,  to  try  the  property  of  estates  ;  though  it  is  not  so 
usual  as  that  by  ejectment,  because  that,  being  now  a  mixed  action,  not 
only  gives  damages  for  the  ejection,  but  also  possession  of  the  land  ;  whereas 
in  trespass,  which  is  merely  a  personal  suit,  the  right  can  be  only  ascer- 
tained, but  no  possession  delivered  ;  nothing  being  recovered  but  damages 
for  the  wrong  committed." 

The  defence  here  spoken  of  m,ay  indeed  be  given  in  evidence  under  the 
plea  of  not  guilty,  which  is  the  general  issue  in  trespass.  In  like  manner 
the  defendant  may,  under  the  same  plea,  give  evidence  that  the  right  of 
freehold  is  in  a  third  person,  for  this  proves  he  had  not  trespassed  on  the 
plaintiff. 

In  this  action  the  plaintiff  will  recover  no  more  costs  than  damages,  if 
the  damages  are  under  $6.66,  unless  the  court  shall  be  satisfied  and  enter 
on   the   record  that  the  freehold,  or  title,  or  interest,  of  the   land  was,  or 
might  have  been,  in  question,  or  that  the  trespass  was  wilful  or  malicious. 
1  R.  C.  ch.  128,  §  21. 

"  Every  trespass  is  tvilful  where  the  defendant  has  notice,  and  is  espe- 
cially forwarned  not  to  come  on  the  land  ;  see  6  T.  R.  11 ;  as  every  tres- 
voL.  2—25 


194  NUISANCE.  [book  3. 

pass  is  malicious,  though  the  damage  may  not  amount  to  forty  shillings, 
where  the  intent  of  the  defendant  plainly  appears  to  be  to  harass  and  dis- 
tress the  plaintiff. 

"  A  third  species  of  real  injuries  to  a  man's  lands  and  tenements,  is  by 
nuisarice.  Nuisance,  nocumentum,  or  annoyance,  signifies  any  thing  that 
worketh  hurt,  inconvenience,  or  damage.  And  nuisances  are  of  two  kinds  : 
public  or  common  nuisances,  which  affect  the  public,  and  are  annoyance  to 
all  the  king's  subjects  :  for  which  reason  we  must  refer  them  to  the  class  of 
public  wrongs,  or  crimes  and  misdemeanors:  and  private  nuisances,  which 
are  the  objects  of  our  present  consideration,  and  may  be  defined,  any  thing 
done  to  the  hurt  or  annoyance  of  the  land^i,  tenements,  or  hereditaments 
of  another.  We  will,  therefore,  first,  mark  out  the  several  kind  of  nuir 
sances,  and  then  their  respective  remedies. 

"I.  In  discussing  the  several  kinds  of  nuisances,  we  will  consider,  first, 
such  nuisance  as  may  affect  a  man's  corporeal  hereditaments,  and  then 
those  that  may  damage  such  as  are  incorporeal. 

"  1.  First,  as  to  corporeal  inheritances.  If  a  man  builds  a  house  so  close 
to  mine  that  his  roof  overhangs  my  roof,  and  throws  the  water  off  his  roof 
upon  mine,  this  is  a  nuisance,  for  which  an  action  will  lie.  Likewise  to 
erect  a  house  or  other  buildings  so  near  to  mine,  that  it  obstructs  my  an- 
cient lights  and  windows,  is  a  nuisance  of  a  similar  nature.  Bat  in  this 
latter  case  it  is  necessary  that  the  windows  be  ancient :  that  is,  have  sub- 
sisted there  a  long  time  without  interruption;  otherwise  there  is  no  injury 
done.  For  he  hath  as  much  right  to  build  a  new  edifice  upon  his  ground 
as  I  have  upon  mine  ;  since  every  man  may  erect  what  he  pleases  upon  the 
upright  or  perpendicular  of  his  own  soil,  so  as  not  to  prejudice  what  has 
long  been  enjoyed  by  another;  and  it  was  my  folly  to  build  so  near 
another's  ground.  Also,  if  a  person  keeps  his  hogs,  or  other  noisome 
animals,  so  near  the  house  of  another,  that  the  stench  of  them  incommodes 
him  and  makes  the  air  unwholesome,  or  renders  the  enjoyment  of  life  and 
property  uncomfortable  ;  1  Bur.  337.  2  Stra.  1167;  this  is  an  injurious 
nuisance,  as  it  tends  to  deprive  him  of  the  use  and  benefit  of  his  house. 
A  like  injury  is,  if  one's  neighbor  sets  up  and  exercises  any  offensive  trade  ; 
as  a  tanner's,  a  tallow  chandler's,  or  the  like  ;  for  though  these  are  lawful 
and  necessary  trades,  yet  they  should  be  exercised  in  remote  places ;  for 
the  rule  is,  ^^  sic  iitere  tuo,  ut  alienum  non  laedas :"  this,  therefore,  is  an  ac- 
tionable nuisance. 

"  So  also  it  will  be  a  nuisance,  if  life  is  made  uncomfortable  by  the  ap- 
prehension of  danger;  it  has,  therefore,  been  held  to  be  a  nuisance,  to  keep 
great  quantities  of  gunpowder  near  dwelling  houses.     2  Stra.  1167. 

"And  where  defendant  employed  a  steam  engine  in  his  business  as 
a  printer,  which  produced  a  continual  noise  and  vibration  in  the  plaintiff's 
apartment,  which  adjoined  the  premises  of  the  defendant,  it  was  held  that 
this  was  a  nuisance.  Duke  of  Northumberland  vs.  Clowes,  C.  P.  at  West- 
xninister,  A.  D.  1821.  Yet  an  action  cannot  be  maintained  for  every  thing 
done  to  the  inconvenience  of  another;  for  where  a  jury  found  for  the  de- 
fendant in  an  action  for  keeping  seven  noisy  pointers,  the  court  refused  to 
grant  a  new  trial.     Selw.  974. 

"  Thus  the  nuisances  which  affect  a  man's  dwelling  may  be  reduced  to 
these  three  :  1.  Overhanging  it ;  which  is  also  a  species  of  trespass,  for 
cujios  est  solum,  ejus  est  usque  ad  caelum  :  2.  Stopping  ancient  lights  :  and, 
3.  Corrupting  the  air  with  noisome  smells;  for  light  and  air  are  two  indis- 
pensable requisites  to  every  dwelling.  But  depriving  one  of  a  mere  matter 
of  pleasure,  as  of  a  fine  prospect  by  building  a  wall,  or  the  like  ;  this,  as  it 
abridges  nothing  really  convenient  or  necessary,  ii  no  injury  to  the  Bufferer, 
and  i«,  ther«for«,  n»t  an  actienable  nuisance. " 


CHAP.  12.]  NUISANCE.  195 

"  As  to  nuisance  to  one's  lands :  if  one  erects  a  smeltinff-house  for  lead 
80  Bear  the  land  of  another,  that  the  vapour  and  smoke  kills  his  corn  and 
grass,  and  damages  his  cattle  therein,  this  is  held  to  be  a  nuisance.  And 
by  consequence  it  follows,  that  if  one  does  any  other  act,  in  itself  lawful, 
which  yet  being  done  in  that  place  necessarily  tends  to  the  damage  of 
another's  property,  it  is  a  nuisance  :  for  it  is  incumbent  on  him  to  find  some 
other  place  to  do  that  act,  where  it  will  be  less  offensive.  So,  also,  if  my 
neighbor  ought  to  scour  a  ditch,  and  does  not,  whereby  my  land  is  over- 
flowed, this  is  an  actionable  nuisance." 

With  regard  to  other  corporeal  heriditaments,  it  is  a  nuisancp  to  stop  or 
divert  a  watercourse  that  uses  to  run  to  another's  meadow  or  mill,*  Twenty 
years'  exclusive  enjoyment  of  the  water  in  any  particular  manner  by  the 
occupier  of  the  adjoining  lands,  affords  a  conclusive  presumption  of  right 
in  the  party  so  enjoying  it;  and  he  may  maintain  an  action  if  the  water  be 
diverted  from  its  course,  so  that  the  quantity  he  has  thus  been  accustomed 
to  enjoy  is  diminished,  although  the  fishery  may  not  be  injured  ;  6  East,  208. 
7  East,  195  1  Wils.  175;  and  he  may  legally  enter  the  land  of  a  person, 
who  has  occasioned  a  nuisance  to  a  watercourse,  to  abate  it.  2  Smith's 
Rep.  9.     Com.  Dig.  Pleader,  3  M.  41. 

So,  too,  it  is  a  nuisance  to  "  corrupt  or  poison  a  watercourse,  by  erect- 
ing a  dye-house  or  a  lime-pit  for  the  use  of  trade  in  the  upper  part  of  the 
stream  ;  or,  in  short,  to  do  any  act  therein,  that  in  its  consequences  must 
necessarily  tend  to  the  prejudice  of  one's  neighbor.  So  closely  does  the 
law  of  England  enforce  that  excellent  rule  of  gospel-morality,  of  "doing 
to  others  as  we  would  they  should  do  unto  ourselves." 

"  2.  As  to  incorporeal  hereditaments,  the  law  carries  itself  with  the  same 
equity.  If  I  have  a  way,  annexed  to  my  estate,  across  another's  land,  and 
he  obstructs  me  in  the  use  of  it,  either  by  totally  stopping  it,  or  putting 
logs  across  it,  or  ploughing  over  it,  it  is  a  nuisance :  for  in  the  first  case  I 
cannot  enjoy  my  right  at  all,  and  in  the  latter  I  cannot  enjoy  it  so  commo- 
diously  as  I  ought."  'So  if  I  have  a  ferry  established  by  law,  it  is  an  injury 
and  nuisance  for  any  person  to  erect  a  ferry,  without  authority  of  law,  so 
near  mine  as  to  draw  away  the  custom  ;  for  as  I  am  bound  to  keep  the 
ferry  always  in  repair  and  readiness,  for  the  use  of  travellers,  under  heavy 
penalties,  (see  2  R.  C.  ch.  2-37,  238,)  it  "  would  be  extremely  hard,  if  a 
new  ferry  were  suffered  to  share  my  profits,  which  does  not  share  also  my 
burthen.  But  where  the  reason  ceases,  the  law  also  ceases  with  it:  there- 
fore, it  is  no  nuisance  to  erect  a  mill  so  near  mine,  as  to  draw  away  the  cus- 
tom, unless  the  miller  also  intercepts  the  water.  Neither  is  it  a  nuisance  to 
set  up  any  trade,  or  a  school,  in  a  neighborhood  or  rivalship  with  another: 
for  by  such  emulation  the  public  are  like  to  be  gainers ;  and,  if  the  new 
mill  or  school  occasion  a  damage  to  the  old  one,  it  is  damnum  absque  injU' 
ria. 

"  II.  Let  us  next  attend  to  the  remedies,  which  the  law  has  given  for 
this  injury  of  nuisance.  And  here  I  must  premise  that  the  law  gives  no 
private  remedy  for  any  thing  but  a  private  wrong.  Therefore,  no  action 
lies  for  a  public  or  common  nuisance,  but  an  indictment  only  :  because  the 
damage  being  common  to  all  the  king's  subjects,  no  one  can  assign  his 
particular  proportion  of  it;  or  if  he  could,  it  would  be  extremely  hard,  if 
every  subject  in  the  kingdom  were  allowed  to  harass  the  offender  with  se- 
parate actions.  For  this  reason  no  person,  natural  or  corporate,  can  have 
an  action  for  a  public  nuisance,  or  punish  it ;"  but  only  the  commonwealth. 
"Yet  this  rule  admits  of  one  exception  ;  where  a  private  person  suffers 
some  extraordinary  damage,  beyond  the  rest  of  the  people,  by  a  public  nui- 
sance ;  in  which  case  he  shall  have  a  private  satisfaction  by  action.  As  it, 
•  But  damage  must  be  proved.   2  JBarn .  j&  Cre«.  910. 


196  WASTE.  [book  3. 

by  means  of  a  ditch  dug  across  a  public  way,  which  is  a  common  nuisance, 
a  man  or  his  horse  suffer  any  injury  by  falling  therein  ;  there  for  this  par- 
ticular damage,  which  is  not  common  to  others,  the  party  shall  have  his  ac- 
tion.* Also  if  a  man  hath  abated,  or  removed,  a  nuisance  which  offended 
him,  (as  we  may  remember  it  was  stated  in  the  first  chapter  of  this  book, 
that  the  party  injured  hath  a  right  to  do,)  in  this  case  he  is  entitled  to  no 
action.  For  he  had  choice  of  two  remedies;  either  without  suit,  by  abat- 
ing it  himself,  by  his  own  mere  act  and  authority  ;  or  by  suit,  in  which  he 
may  both  recover  damages,  and  remove  it  by  the  aid  of  the  law  :  but,  hav- 
ing made  his  election  of  one  remedy,  he  is  totally  precluded  from  the  other. 

"The  remedies  by  suit  are,  1.  By  action  on  the  case  for  damages;  in 
which  the  party  injured  shall  only  recover  a  satisfaction  for  the  injury  sus- 
tained;  but  cannot  thereby  remove  the  nuisance.  Indeed  every  continu- 
ance of  a  nuisance  is  held  to  be  a  fresh  one  ;  and  therefore  a  fresh  action 
will  lie,  and  very  exemplary  damages  will  probably  be  given,  if,  after  one 
verdict  against  him,  the  defendant  has  the  hardiness  to  continue  it."  In 
this  second  action  the  verdict  in  the  first  action  is  conclusive  of  the  rights 
of  the  parties.  And  thus  it  may  happen  that  a  party  may  be  subjected  to 
very  heavy  damages  and  the  loss  of  important  rights,  without  the  power  of 
appeal.  For  it  has  been  decided  that  in  an  action  for  a  nuisance  in  erect- 
ing a  mill,  if  the  damages  recovered  are  less  than  $100,  no  appeal  lies, 
though  it  appears  from  the  record  that  the  right  to  erect  the  mill  came  in 
question.  5  Mun.  270.  Thus,  then,  in  the  first  action,  in  which  nominal 
damages  are  given  and  the  right  is  determined  forever,  there  can  be  no  ap- 
peal;  and  in  the  second,  where  the  damages  are  heavy,  an  appeal  would  be 
to  no  purpose,  so  far  as  relates  to  the  matter  of  right,  as  the  right  is  conclu- 
sively determined  by  the  first  action. 

"The  founders  of  the  law  of  England  did  not,  however,  rely  upon  pro- 
babilities merely,  in  order  to  give  relief  to  the  injured.  They  have  there- 
fore provided  two  other  actions  ;  the  assise  of  nuisance,  and  the  writ  of  quod 
permitlat  prosternere  :  which  not  only  give  the  plaintiff  satisfaction  for  his 
injury  past,  but  also  strike  at  the  root  and  remove  the  cause  itself,  the  nui- 
sance that  occasioned  the  injury.  These  two  actions,  however,  can  only 
be  brought  by  the  tenant  of  the  freehold  ;  so  that  a  lessee  for  years  is  con- 
fined to  his  action  upon  the  case;"  and  indeed  both  these  actions  are  now 
out  of  use. 

We  have  already  observed  that  twenty  years'  adverse  enjoyment  of  water 
in  any  particular  manner,  affords  a  conclusive  presumption  that  the  party 
hath  a  right  by  grant  or  otherwise,  unless  such  enjoyment  can  be  explained 
so  as  to  show  no  admission  of  right.  Selw.  273.  6  E.  214.  And  in  de- 
claring in  such  a  case  or  in  pleading  such  right,  the  party  insisting  on  it  sets 
it  forth  as  a  grant  which  hath  by  time  or  accident  been  lost  or  destroyed. 
See  2  Ciiitty,  575.  For  the  form  of  declarations  for  diverting  water  courses, 
see  ibid,  337. 

"  The  fourth  species  of  injury,  that  may  be  offered  to  one's  real  property, 
is  by  ivaste,  or  destruction  in  lands  and  tenements.     What  shall  be  called 

*  But  the  particular  clamnge  in  (his  case  must  he  direct,  and  not  ronseqiienlial,  as  bj'  being  dela3'ed 
jn  ajoiirney  of  iiii|)ortaiice.°  Bull.  N.  1^.  iilj.  Carthcw,  194.  And  if  the  plaintiff  lias  not  acted  with 
ordinary  care  ami  skill,  with  a  view  to  protect  liiiiiseif  from  the  mischief,  he  cannot  recover.  11  East, 
60.  a  Taunt.  311.  If  a  parly  living  in  the  neiyliborhood,  and  who  has  been  in  the  habit  of  passing 
to  and  fro  on  a  highway,  is  obliged  by  a  nuisance  thereto  to  take  a  more  circuitous  route  in  his  transit 
to  and  from  the  nearest  market  town  to  iiis  house,  it  is  a  pi  ivate  injury,  for  which  he  may  sue  as  well 
as  indict.  3  M.  &.  S.  472.  So,  being  delayed  four  hours  by  an  obstruction  in  ahighway,  and  being 
thereby  prevented  from  perforniiug  the  same  journey  as  many  times  in  the  day  as  if  the  obstruction 
liad  not  existed,  is  a  sufficient  injury  to  entitle  a  parly  to  sue  for  the  obstruction.  2  Bingh.  233.  So. 
if  the  nuisance  prevent  the  |)laintifr  navigating  his  barges  on  a  public  navigable  creek,  and  compel 
him  to  convey  liis  goods  out  of  the  same  over  a  great  distance  by  land,  it  is  actionable.  4  M.  &■  S- 
101.  But  the  mere  obstruction  of  the  plaintiff  in  liis  business,  1  Esp.  N.  P.  C.  148.  4  INI.  &  S.  103, 
or  delaying  him  a  little  while  in  a  journey,  Carth.  191,  is  not  such  a  damage  as  will  entitle  the  party 
to  his  action  ;  the  damage  ought  to  be  direct,  not  consequential.    Carth.  191.  Clncty. 


CHAP.  12.]  WASTE.  197 

vvaete  was  considered  at  large  in  a  former  book,  as  it  was  a  means  of  for- 
feiture, and  thereby  of  transferring  the  property  of  real  estates.  I  shall, 
therefore,  here  only  beg  leave  to  remind  the  student,  that  waste  is  a  spoil 
and  destruction  of  the  estate,  either  in  houses,  woods,  or  lands;  by  demo- 
lishing not  the  temporary  profits  only,  but  the  very  substance  of  the  thing; 
thereby  rendering  it  wild  and  desolate;  which  the  common  law  expresses 
very  significantly  by  the  word  vastum  :  and  that  this  vasttim,  or  waste,  ia 
either  voluntary,  or  permissive  ;  the  one  by  an  actual  and  designed  demo- 
lition of  the  lands,  woods,  and  houses;  the  other  arising  from  mere  negli- 
gence, and  want  of  sufficient  care  in  reparations,  fences,  and  the  like.  So 
that  my  only  business  is  at  present  to  shew,  to  whom  this  waste  is  an  inju- 
ry;  and  of  course  who  is  entitled  to  any,  and  what,  remedy  by  action. 

I.  "  The  persons  who  may  be  injured  by  waste,  are  such  as  have  some 
interest  in  the  estate  wasted  ;  for  if  a  man  be  the  absolute  tenant  in  fee-sim- 
ple, without  any  incumbrance  or  charge  on  the  premises,  he  may  commit 
whatever  waste  his  own  discretion  may  prompt  him  to,  without  being  im- 
peachable, or  accountable  for  it  to  any  one.  Ajid,  though  his  heir  is  sure 
to  be  the  sufferer,  yet  nemo  est  haeres  vivenlis';  no  man  is  certain  of  suc- 
ceeding him,  as  well  on  account  of  the  uncertainty  which  shall  die  first,  as 
also  because  he  has  it  in  his  ovv'n  power  to  constitute  what  heir  he  pleases, 
according  to  the  civil  law  notion  of  an  haeres  natus  and  an  haeres  /actus  : 
or,  in  the  more  accurate  phraseology  of  our  English  law,  he  may  aliene  or 
devise  his  estate  to  whomever  he  thinks  proper,  and  by  such  alienation  or 
devise  may  disinherit  his  heir  at  law.  Into  whose  hands  soever,  therefore, 
the  estate  wasted  comes,  after  a  tenant  in  fee-simple,  though  the  waste  ia 
undoubtedly  damnum,  it  is  damnum  absque  injuria. 

"One  species  of  interest,  which  is  injured  by  waste,  is  that  of  a  person 
who  has  a  right  of  common  in  the  place  wasted  ;  especially  if  it  be  com- 
mon of  estovers,  or  a  right  of  cutting  and  carrying  away  wood  for  house- 
bote, plough-bote,  &c.  Here,  if  the  owner  of  the  wood  demolishes  the 
whole  wood,  and  thereby  destroys  all  possibility  of  taking  estovers,  this  is 
an  injury  to  the  commoner,  amounting  to  no  less  \\\%n  a  disseisin  of  his 
common  of  estovers,  if  he  chooses  so  to  consider  it ;  for  which  he  has 
his  remedy  to  recover  possession  and  damages  by  assise,  if  entitled  to  a 
freehold  in  such  common  ;  but  if  he  has  only  a  chattel  interest,  then  he  can 
only  recover  damages  by  an  action  on  the  case  for  this  waste  and  destruc- 
tion of  the  woods,  out  of  which  his  estovers  were  to  issue. 

"But  the  most  usual  and  important  interest,  that  is  hurt  by  this  commis- 
sion of  waste,  is  that  of  him  who  hath  the  remainder  or  reversion  of  the 
inheritance,  after  a  particular  estate  for  life  or  years  in  being.  Here,  if  the 
particular  tenant — (be  it  the  tenant  in  dower  or  by  curtesy,  who  was  answer- 
able for  waste  at  the  common  law,  or  the  lessee  for  life  or  years,  who  was 
first  made  liable  by  the  statutes  of  Marlbridge  and  of  Gloucester,)  [see  1  R. 
C.  ch.  117] — if  the  particular  tenant,  I  say,  commits  or  suffers  any  waste,  it 
is  a  manifest  injury  to  him. that  has  the  inheritance,  as  it  tends  to  mangle 
and  dismember  it  of  its  most  desirable  incidents  and  ornaments,  among 
which  timbers  and  houses  may  justly  be  reckoned  the  principal.  To  him, 
therefore,  in  remainder  or  reversion,  to  whom  the  inheritance  appertains  in 
expectancy,  the  law  hath  given  an  adequate  remedy.  For  he  who  hath  the 
remainder /or  life  only,  is  not  entitled  to  bring  a  writ  of  waste,  though  he 
may  bring  an  action  on  the  case  for  waste.  For  by  the  writ  of  waste  the 
place  wasted  is  recovered,  and  as  his  interest  may  never  come  into  posses- 
sion, he  ought  not  to  recover  that ;  but  by  the  action  on  the  case  he  reco- 
vers damages  only.  It  seems,  therefore,  that  the  action  on  the  case,  which 
is  the  most  eligible  remedy,  may  be  supported  by  any  person  who  has  the 
immediate  remainder  or  reversion,  whether  in  kejor  Hfe,  or  years,  against 


198  WASTE.  [book  3. 

the  tenant  in  possession,  or  a  stranger.  Whereas,  the  writ  of  waste  Hes 
only  for  the  owner  of  the  inheritance.  See  2  Saun.  252,  n.  7.  2  Chitty, 
344,  n.  q.  It  is  obvious,  also,  that  the  person  immediately  in  remainder  or 
reversion  can  alone  maintain  a  writ  of  waste,  since  by  that  writ  the  party, 
besides  damages,  recovers  the  place  wasted,  to  which  a  remote  remainder- 
man or  reversioner  cannot  be  entitled.  After  the  death  of  the  immediate 
remainderman,  however,  without  recovery,  he  who  is  more  remote  may  su« 
and  recover.  For  the  forms  and  proceedings  in  a  writ  of  waste,  see  2  Saun. 
228. 

"  II.  The  redress  for  this  injury  of  waste  is  of  two  kinds  :  preventive, 
and  corrective  ;  the  former  of  which  is  by  writ  of  estrepement,  the  latter  by 
that  of  waste. 

"  1.  Estrepement  is  an  old  French  word,  signifying  the  satne  as  waste  or 
extirpation  :  and  the  writ  of  estrepement  lay  at  the  common  law,  o/Ver  judg- 
ment obtained  in  any  action  real,  and  before  possession  was  delivered  by 
ihe  sheriff;  to  stop  any  waste  which  the  vanquished  party  might  be  tempt- 
ed to  commit  in  lands,  which  were  determined  to  be  no  longer  his.  But  as 
in  some  cases  the  demandant  may  be  justly  apprehensive,  that  the  tenant 
may  take  waste  or  estrepement  pending  the  suit,  well  knowing  the  weak- 
ness of  his  title,  therefore  the  statute  of  Gloucester  [see  1  R.  C.  ch.  117,] 
gave  another  writ  of  estrepement,  pendente  placito,  commanding  the  sheriff 
firmly  to  inhibit  the  tenant  '  ne  fiaciat  vastum  vel  estrepementum  pendente, 
placito  dido  indiscusso.'  And,  by  virtue  of  either  of  these  writs  the  sheriff 
may  resist  them  that  do,  or  offer  to  do  waste  :  and,  if  otherwise  he  cannot 
prevent  them,  he  may  lawfully  imprison  the  wasters,  or  make  a  warrant  to 
others  to  imprison  them  :  or,  if  necessity  require,  he  may  take  the  posse 
tomitatus  to  his  assistance.  So  odious  in  the  sight  of  the  law  is  waste  and 
destruction. 

"  Besides  this  preventive  redress  at  common  law,  the  courts  of  equity, 
upon  bill  exhibited  therein,  complaining  of  waste  and  destruction,  will  grant 
an  injunction  in  order  to  stay  waste,  until  the  defendant  shall  have  put  in 
liis  answer,  and  the  court  shall  thereupon  make  further  order.  Which  is 
now  become  the  most  usual  way  of  preventing  waste. 

"2.  A  writ  of  waste  is  also  an  action,  partly  founded  upon  the  common 
law,  and  partly  upon  the  statute  of  Gloucester,  [see  1  R.  C.  ch.  117,]  and 
may  be  brought  by  him  who  hath  the  immediate  estate  of  inheritance  in 
reversion  or  remainder,  against  the  tenant  for  life,  tenant  in  dower,  tenant 
by  the  curtesy,  or  tenant  for  years.  This  action  is  also  maintainable  in 
pursuance  of  statute  Westm.  2,  by  one  tenant  in  common  of  the  inheritance 
against  another,  who  makes  waste  in  the  estate  holden  in  common.  The 
equity  of  which  statute  extends  to  joint-tenants  but  not  to  coparceners  ;  be- 
cause by  the  old  law  coparceners  might  make  partition,  whenever  either  of 
them  thought  proper,  and  thereby  prevent  future  waste,  but  tenants  in  com- 
mon and  joint-tenants  could  not;  and  therefore  the  statute  gave  them  this 
remedy,  compelling  the  defendant  either  to  make  partition,  and  take  the 
place  wasted  to  his  own  share,  or  to  give  security  not  to  commit  any  farther 
waste.  But  these  tenants  in  common  and  joint-tenants  are  not  liable  to 
the  penalties  of  the  statute  of  Gloucester,  which  extends  only  to  such  as 
have  life-estates,  and  do  waste  to  the  prejudice  of  the  inheritance.  The 
waste,  however,  must  be  something  considerable  ;  for  if  it  amount  only  to 
twelve  pence,  or  some  such  petty  sum,  the  plaintiff  shall  not  recover  in  an 
action  of  waste  :  nam  de  minimis  non  curat  lex. 

"This  action  of  waste  is  a  mixed  action  ;  partly  real,  so  far  as  it  recovers 
land  ;  and  partly  personal,  as  far  as  it  recovers  damages.  For  it  is  brought 
for  both  those  purposes  ;  and,  if  the  waste  be  proved,  the  plaintiff  shall  re- 
cover the  thing  or  place  waited,  and  also  treble  damages  by  the  statute  of 


CHAP.  12.]  DISTURBANCE.  199? 

Gloucester.  The  writ  of  waste  calls  upon  the  tenant  to  appear  and  shew 
cause  why  he  hath  committed  waste  and  destruction  in  the  place  named, 
dd  exhaeredatienem,  to  the  disinherison  of  the  plaintiff.  And  if  the  de- 
fendant makes  default,  or  does  not  appear  at  the  day  assigned  him,  then 
the  sheriff  is  to  take  with  him  a  jury  of  twelve  men,  and  go  in  person  to 
the  place  alleged  to  be  wasted,  and  there  inquire  of  the  waste  done,  and  the 
damages  ;  and  make  a  return  or  report  of  the  same  to  the  court,  upon  which* 
report  the  judgment  is  founded.  For  the  law  will  not  suffer  so  heavy  a 
judgment,  as  th«  forfeiture  and  treble  daniages,  to  be  passed  upon  a  mere 
default,  without  full  assurance  that  the  fact  is  according  as  it  is  stated  in 
the  writ.  But  if  the  defendant  appears  to  the  writ,  and  afterwards  suffers 
judgment  to  go  against  him  by  default,  or  upon  a.nihil  dicit,  (when  he  makes 
no  answer,  puts  in  no  plea,  in  defence,)  this  amounts  to  a  confession  of 
the  waste  ;  since,  having  once  appeared,  he  cannot  now  pretend  ignorance 
of  the  charge.  Now,  therefore,  the  sheriff  shall  not  go  to  the  place  to  in- 
quire of  the  fact,  whether  any  waste  has,  or  has  not,  been  committed  ;  for 
this  is  already  ascertained  by  the  silent  confession  of  the  defendant ;  but 
he  shall  only,  as  in  defaults  upon  other  actions,  make  inquiry  of  the  quaiv- 
turn  of  damages.  The  defendant,  on  the  trial,  may  give  in  evidence  any 
thing  that  proves  there  was  no  waste  committed,  as  that  the  destruction 
happened  by  lightning,  tempest,  the  king's  enemies,  or  other  inevitable  ac- 
cident. But  it  is  no  defence  to  say,  that  a  stranger  did  the  waste,  for 
against  him  the  plaintiff  hath  no  remedy  ;  though  the  defendant  is  entitled 
to  sue  such  stranger  in  an  action  of  trespass  vi  et  armis,  and  shall  recover 
the  damages  he  has  suffered  in  consequence  of  such  unlawful  act. 

"  When  the  waste  and  damages  are  thus  ascertained,  either  by  confes- 
sion, verdict,  or  inquiry  of  the  sheriff,  judgment  is  given  in  pursuance  of  the 
statute,  that  the  plaintiff  shall  recover  the  place  wasted  ;  for  which  he  has 
immediately  a  writ  of  seisin,  provided  the  particular  estate  be  still  subsist- 
ing, (for,  if  it  be  expired,  there  can  be  no  forfeiture  of  the  land,)  and  also 
that  the  plaintiff  shall  recover  treble  the  damages  assessed  by  the  jury  ; 
which  he  must  obtain  in  the  same  manner  as  all  other  damages,  in  actions 
personal  and  mixed^  are  obtained,  whether  the  particular  estate  be  expired, 
or  still  in  being." 

The  last  species  of  real  injuries,  is  that  of  disturbance,  which  is  usually 
a  wrong  done  to  some  incorporeal  hereditament,  by  hindering  or  disquiet- 
ing the  owners  in  their  regular  or  lawful  enjoyment  of  it. 

I  am  not  aware  of  any  species  of  disturbance  known  to  our  laws,  except 
disturbance  of  franchises  and  disturbance  of  ways,  and  even  these  must  be 
very  limited  and  rear.  The  disturbance  of  franchise  may  exist  in  the  case 
of  the  turnpike  companies,  in  obstructing  the  exercise  of  their  chartered 
right  to  take  the  tolls  allowed  by  law.  Nor  does  it  seem  to  me  very  impor- 
tant to  consider  these  and  some  of  the  other  cases  of  disturbance  mention- 
ed by  Mr.  Blackstone,  under  a  distinct  head,  since  they  fall  naturally  under 
the  division  of  actions  on  the  case,  which  is  the  proper  species  of  actions 
for  all  these  injuries. 

"  The  third  species  of  disturbance  happens  when  one  who  hath  a  right 
to  a  way  over  another's  grounds,  by  grant  or  prescription,  is  obstructed  by 
enclosures,  or  other  obstacles,  or  by  ploughing  across  it;  by  which  means 
he  cannot  enjoy  his  right  of  way,  or  at  least  not  in  so  commodious  a  man- 
ner as  he  might  have  done.  If  this  be  a  way  annexed  to  his  estate,  and 
the  obstruction  is  made  by  the  tenant  of  the  land,  this  brings  it  to  another 
species  of  injury  ;  for  it  is  then  a  nuisance,  for  which  an  assise  will  he,  as 
mentioned  in  a  former  chapter.  But  if  the  right  of  way,  thus  obstructed 
by  the  tenant,  be  only  in  gross,  (that  is,  annexed  to  a  man's  person  and  un- 
«onne«ted  with  any  lands  or  teHements,)  or  if  the  obstruction  of  a  way  be- 


200  DISTURBANCE.  [  book  3. 

longing  to  an  house  of  land  is  made  by  a  stranger,  it  is  then  in  either  case 
merely  a  disturbance  :  for  the  obstruction  of  a  \vay  in  gross  is  no  detriment 
to  any  lands  or  tenements,  and  therefore  does  not  fall  under  the  legal  no- 
tion of  a  nuisance,  which  must  be  laid,  ad  nocumentum  liberi  lenementi  ; 
and  the  obstruction  of  it  by  a  stranger  can  never  tend  to  put  the  right  of 
way  in  dispute  :  the  remedy  therefore  for  these  disturbances  is  not  by  as- 
sise or  any  real  action,  but  by  the  universal  remedy  of  action  on  the  case  to 
recover  damages." 

In  a  preceding  lecture  we  have  enlarged  somewhat  upon  the  text  of  the 
commentator  in  relation  to  the  right  of  way.  It  becomes  necessary  in  this 
place  also  to  be  somewhat  more  particular  than  he.  has  been  upon  the  sub- 
ject of  the  injury  of  disturbance,  and  the  remedy  to  be  pursued,  with  the 
mode  of  pursuing  it ;  for  although  these  questions  do  not  as  yet  arise  very 
frequently  in  our  courts,  it  is  obvious  that,  as  we  advance  in  denseness  of 
population,  they  will  be  more  and  more  important.  Waiving,  therefore, 
the  consideration  of  nuisances  on  public  highways,  which  are  remarked 
upon  elsewhere,  I  shall  here  only  turn  the  student's  attention  to  the  remedy 
of  the  action  on  the  case  for  a  disturbance  of  a  right  of  way,  or  for  a  nui- 
sance' to  a  private  way.  And  here  it  must  be  recollected,  that,  as  the  gran- 
tee is  to  keep  the  road  in  repair  himself,  (at  least  so  far  as  his  own  conve- 
nience is  to  be  consulted,  unless  there  be  a  special  agreement  to  do  so  by 
the  grantor,)  he  can  only  sue  for  acls  of  the  grantor,  and  not  for  his  omis- 
sions. Some  of  those  acts  which  lay  the  foundation  of  an  action  are  men- 
tioned in  the  text. 

In  the  plaintiff's  declaration,  which  is  intended  to  set  forth  his  rights  and 
to  state  the  injuries  he  has  sustained,  he  usually  shews  a  possession  of  a 
house  or  land,  and  that  by  reason  thereof  he  ought  to  have  a  certain  way. 
In  the  case  of  a  private  way,  it  must  be  described  ;  and  it  must  be  stated 
either  that  it  leads  to  a  public  highway,  (8  E.  4,)  or  that  it  leads  to  a  pri- 
vate close  in  which  the  plaintiff  has  an  interest.  The  kind  of  right  of  way 
should  also  be  shewn  ; — whether  cartway,  horseway,  or  footway,  and  the 
injury,  hindrance,  and  obstruction  set  forth  ;  though  the  kind  of  nuisance 
erected  need  not  be  specified.  See  2  Chitty,  358,  a  precedent,  and  the 
notes  thereon:  and  see  also  2  Saun.  114  a.  n.  1.  Formerly  the  plaintiff 
was  bound  to  set  forth  in  all  cases,  (whether  he  claimed  by  grant,  prescrip- 
tion, or  a  way  of  necessity,)  in  what  manner  he  did  claim.  But  this  is  not 
now  held  to  be  necessary  where  the  plaintiff  sets  forth  a.  possession,  and  a 
rightly  reason  thereof.  See  1  Saun.  114,  a.  n.  1.  Chitty,  358.  But  if  the 
right  of  way  be  not  by  reason  of  possession,  but  by  special  agreement,  it  is 
necessary  to  set  it  out ;  as,  for  instance,  in  the  case  of  a  right  of  way  in 
gross;  and  so  I  presume  (from  the  reasoning  of  Serjeant  Williams,  shew- 
ing that  a  way  of  necessity  is  nothing  else  but  a  way  by  grant,  1  Saun.  323, 
a.  n.  6,)  it  is  equally  proper  where  such  right  of  way  is  claimed.  It  seems, 
indeed,  that  where  the  defendant  in  trespass  justifies  under  a  right  of  way, 
whether  by  grant,  prescription,  of  necessity,  or  by  way  of  non-existing  grant, 
(to  let  in  the  presumption  from  length  of  time,)  he  must  always  set  forth  in 
his  plea  the  particular  grounds  of  his  title.  1  Saun.  323,  a.  in  note.  1  B. 
&  P.  371.  3  E.  294.  2  Chitty,  575,  in  note  ;  also  the  different  precedents 
in  2  Chitty,  from  573  to  580.  I  incline,  therefore,  to  suppose  that  in  all 
cases,  except  where  the  plaintiff  claims  by  prescription,  (which  never  can 
occur  in  Virginia,)  he  must  set  forth  how  he  claims.  However  this  may  be, 
he  must  prove  the  title  at  the  trial  to  enable  him  to  recover,  even  in  those 
cases  where  it  is  considered  matter  of  evidence  only.  2  Saun.  114,  c.  in 
note.  The  student,  in  addition  to  the  authorities  above  cited,  may  consult 
2  Esp.  639,  3d  Lon.  Ed. 


:hap.  12.]  QtJO  WARRANTO.  20l 

Passing  over  the  intermediate  matter  of  Mr,  Blackstone'e  work,  but  recom- 
mending it  to  the  student's  attentive  perusal,  I  shall  now  proceed  to  the 
consideration  of  two  species  of  remedies,  which  he  has  classed  under  the 
head  of  remedies  proceeding  from,  or  affecting,  the  crown. 

Of  these  the  first  is  a  quo  warranto.  "  A  writ  of  quo  warranto  is  in  the 
nature  of  a  writ  of  right  for  the  crown,  against  him  who  claims  or  usurps 
any  office,  franchise,  or  liberty,  to  inquire  by  what  authority  he  supports  his 
claim,  in  ordef  to  determine  the  right.  It  lies  also  in  case  of  non-user  or 
long  neglect  of  a  franchise,  or  mis-user  or  abuse  of  it ;  being  a  writ  com- 
manding the  defendant  to  shew  by  what  warrant  he  exercises  such  a  fran- 
chise, having  never  had  any  grant  of  it,  or  having  forfeited  it  by  neglect  or 
abuse.  And  in  case  of  judgment  for  the  defendant,  he  shall  have  an  allow- 
ance of  his  franchise  ;  but  in  case  of  judgment  for  the  king,  for  that  the 
party  is  entitled  to  no  such  franchise,  or  hath  disused  or  abused  it,  the  fran- 
chise is  either  seised  into  the  king's  hands,  to  be  granted  out  again  to 
whomever  he  shall  please  ;  or,  if  it  be  not  such  a  franchise  as  may  subsist  in 
the  hands  of  the  crown,  there  is  merely  judgment  of  ouster,  to  turn  out  the 
party  who  usurped  it. 

"  The  judgment  on  a  writ  of  quo  warranto  (being  in  the  nature  of  a  writ 
of  right)  is  final  and  conclusive  even  against  the  commonwealth.  Which, 
together  with  the  length  of  its  process,  probably  occasioned  that  disuse  into 
which  it  is  now  fallen,  and  introduced  a  more  modern  method  of  prosecu- 
tion, by  information  by  the  attorney  for  the  commonwealth,  in  the  nature  of 
a  writ  of  quo  warranto  ;  wherein  the  process  is  speedier,  and  the  judgment 
not  quite  so  decisive.  This  is  properly  a  criminal  method  of  prosecution, 
as  well  to  punish  the  usurper  by  a  fine  for  the  usurpation  of  the  franchise, 
as  to  oust  him,  or  seise  it  for  the  state ;  but  hath  long  been  applied  to  the 
mere  purposes  of  trying  the  civil  right,  seising  the  franchise,  or  ousting  the 
wrongful  possessor ;   the  fine  being  nominal  only. 

"A  writ  of  mandamus  is,  in  general,  a  command  issuing  in  the  common- 
wealth's name  from  the  court  having  jurisdiction  thereof,  and  directed  to 
any  person,  corporation,  or  inferior  court  of  judicature,  requiring  them  to 
do  some  particular  thing  therein  specified,  which  appertains  to  their  office 
and  duty,  and  which  the  court  has  previously  determined,  or  at  least  sup- 
poses to  be  consonant  to  right  and  justice.  It  is  a  high  prerogative  writ,  of 
a  most  extensive  remedial  nature  ;  and  may  be  issued  in  some  cases  where 
the  injured  party  has  also  another  more  tedious  method  of  redress,  as  in  the 
case  of  admission  or  restitution  to  an  office  ;  but  it  issues  in  all  cases  where 
the  party  hath  a  right  to  have  any  thing  done,  and  hath  no  other  specific 
means  of  compelling  its  perfermance.  A  mandamus,  therefore,  lies  to  com- 
pel the  admission  or  restoration  of  the  party  applying,  to  any  office  or  fran- 
chise of  a  public  nature  ;  to  academical  degrees  ;  to  the  use  of  a  meeting- 
house, &c.;  it  lies  for  the  production,  inspection,  or  delivery  of  public 
books  and  papers;  to  oblige  bodies  corporate  to  affix  their  common  seal; 
to  compel  the  holding  of  a  court ;  and  for  an  infinite  number  of  other  pur- 
poses, which  it  is  impossible  to  recite  minutely.  But  at  present  we  are 
more  particularly  to  remark,  that  it  issues  to  the  judges  of  any  inferior  court, 
commanding  them  to  do  justice  according  to  the  powers  of  their  office, 
whenever  the  same  is  delayed.  For  it  is  the  peculiar  business  of  superior 
courts  to  superintend  all  inferior  tribunals,  and  therein  to  inforce  the 
due  exercise  of  those  judicial  or  ministerial  powers,  with  which  the  legis- 
lature have  invested  them :  and  this  not  only  by  restraining  their  excesses, 
but  also  by  quickening  their  negligence,  and  obviating  their  denial  of  jus- 
tice. This  writ  is  grounded  on  a  suggestion,  by  the  oath  of  the  party  m- 
jured,  of  his  own  right,  and  the  denial  of  justice  below  :  whereupon,  m  or- 
der more  fully  to  satisfy  the  court  that  there  is  a  probable  ground  for  such 
VOL.  2—26 


202  MANDAMUS.  [book  3. 

interposition,  a  rule  is  made  (except  in  some  general  cases,  where  the  pro- 
bable ground  is  manifest)  directing  the  party  complained  of  to  shew  cause' 
why  a  writ  of  mandamus  should  not  issue:  and,  if  he  shews  no  sufficient 
cause,  the  writ  itself  is  issued,  at  first  in  the  alternative,  either  to  do  thu^s, 
or  signify  some  reason  to  the  contrary  ;  to  which  a  return,  or  answer,  must  be 
made  at  a  certain  day.  And,  if  the  inferior  judge,  or  other  person  to  whom 
the  writ  is  directed,  returns  or  signifies  an  insufficient  reason,  then  there- 
issues  in  the  second  place  a  peremptory  mandamus,  to  do  the  thing  absolute- 
ly ;  to  which  no  other  return  will  be  admitted,  but  a  certificate  of  perfect 
obedience  and  due  execution  of  the  writ.  If  the  inferior  judge  or  other 
person  makes  no  return,  or  fails  in  respect  and  obedience,  he  is  punishable 
for  his  contempt  by  attachment."  But  if  he,  at  the  first,  returns  a  suffi- 
cient cause,  the  person  who  sued  out  the  writ  may  traverse  or  plead  to  all 
or  any  of  the  material  facts  alleged  therein,  to  which  he  who  makes  the  re- 
tUTU  shall  reply,  take  issue,  or  demur,  and  such  further  proceedings  shall  be 
had  as  if  it  were  an  action  for  a  false  return,  and  if  a  verdict  be  rendered 
for  the  person  suing  the  writ,  he  shall  recover  damages  and  costs  in  like 
manner  as  if  he  had  brought  such  action  ;  and  thereupon  he  takes  out  an 
execution  therefor,  aad  a  peremptory  mandamus  also  issues.  1  R.  C.  ch. 
121. 

The  writ  of  mandamus  will  not  lie,  it  is  said,  against  the  visiters  of  a 
private  eleemosynary  institution  ;  3  Call,  593;  but  it  is  a  proper  remedy  to 
restore  to  his  office  a  clerk  of  a  court  who  has  been  ousted  from  his  office 
by  the  illegal  appointment  of  another  person.  3  H.  &  M.  1,  47.  In  such 
case,  however,  the  party  occupying  the  office  ought  to  be  made  a  party  to 
the  rule  or  conditional  mandamus,  or  it  ought  to  be  served  upon  him  that 
he  may  be  warned  to  appear  and  defend  his  right,  and  contest  the  propriety 
of  issuing  a  peremptory  mandamus.  If,  however,  it  appears  from  the  re- 
cord that  he  was  apprised  of  the  proceeding,  it  will  be  sufficient.  Ibid.  If 
an  inferior  court  of  record  refuse  to  admit  a  deed  to  be  proved  and  record- 
ed, a  mandamus  will  lie  to  compel  it  to  do  so.  2H.  &  M.  132.  Sedvide 
3  Dall.42.  So,  if  an  inferior  court  refuse  to  permit  a  defendant,  a  non-re- 
sident of  the  state,  to  remove  his  cause  to  the  circuit  court  of  the  United 
States,  according  to  the  provisions  of  law,  it  may  be  compelled  by  manda- 
mus from  the  superior  court  of  the  state,  but  not  from  the  circuit  court  of 
the  United  States.     4  H.  &  M.  173. 

But  a  mandamus  will  not  lie  to  a  superior  court  of  law  because  it  has  re- 
fused to  grant  a  supersedeas  to  the  judgment  of  an  inferior  court,  thougli> 
that  refusal  is  entered  of  record.  The  proper  remedy  in  that  case  is  a  su- 
persedeas by  the  court  of  appeals  to  the  order  of  refusal.  2  Call,  270,  389. 
Nor,  I  presume,  does  it  lie  to  compel  an  inferior  court  to  proceed  with  a 
cause  where  unreasonable  delay  is  alleged.  See  4  H.  &  M.  462.  It  is 
now  provided  otherwise,  as  to  the  chancery  courts. 

Wlien  a  party  wishes  this  process,  he  moves  by  counsel  for  a  rule  on  the 
person  or  persons  against  whom  it  is  to  go,  to  show  cause  why  it  shall  not 
issue.  When  the  mandamus  is  issued,  and  is  against  the  justices  of  a  court, 
the  delivery  of  it  to  such  of  the  justices  as  are  sitting  in  open  court  is  suffi- 
cient service  of  the  writ.     I  Call,  562. 

A  mandamus  is  a  legal  remedy  to  compel  an  executive  officer  to  deliver  a 
commission  to  any  officer  who  has  been  regularly  appointed  according  to 
the  law  and  constitution,  unless  where  such  oflicer  is  removable  at  will,  and 
the  executive  has  chosen  to  rescind  the  appointment.  1  Cranch,  137,  163. 
But  this  power  being  in  its  character  one  of  original  jurisdiction,  cannot  be 
exercised  by  the  supreme  court  of  the  United  .States,  whose  power  is  only 
appellate,  with  a  very  kvi  exceptions.  Ibid.  2  Wheat.  369.  And  even 
the  power  of  the  circuit  courts  to  issue  a  writ  of  mandamus  is  confined  ex- 


CHAP.  12.]  PKOHIBITION.  203 

clusively  to  cases  in  which  it  may  be  necessary  to  exercise  jurisdiction  in 
cases  vested  in  them.     7  Cranch,  504. 

The  case  of  Dew  vs.  Stribling,  (3  H.  &  M.  ],)  affords  much  useful  in- 
formation on  the  subject  of  the  mandamus.  See  also2  Esp.  661.  3T.  R. 
577.  2  T.  R.  177.  6  E.  356.  1 T.  R.  396.  6  T.  R.  168.  2  T.  R.  259. 
1  M.  &  S.  101.  3  Dall.  42.  It  is  a  general  rule  that  it  will  not  lie  unless 
the  party  has  no  other  specific  remedy.  1  T.  R.  404.  3T.  R.  652.  Douff. 
523,  526.     2  Leigh,  165. 

Lastly,  I  shall  mention  here  another  injury,  which  is  that  of  encroach- 
ment of  jurisdiction,  or  calling  one  coram  non  judice,  to  answer  in  a  court 
that  has  no  legal  cognizance  of  the  cause.  This  is  also  a  grievance,  for 
which  the  common  law  has  provided  a  remedy  by  the  writ  of  prohibition. 

A  prohibition  is  a  writ  issuing  properly  out  of  a  superior  court,  to  an  in- 
ferior court,  commanding  them  to  cease  from  the  prosecution  of  a  suit,  up- 
on a  suggestion  that  either  the  cause  originally,  or  some  collateral  matter 
arising  therein,  does  not  belong  to  that  jurisdiction,  but  to  the  cognizance 
of  some  other  court.  This  writ  may  issue  either  to  inferior  courts  of  com- 
mon law,  or  to  a  justice  or  justices  of  peace,  if  they  hold  plea  of  any  mat- 
ter above  their  jurisdiction.     See  1  Virg.  Ca.  Miller  vs.  Marshall. 

"  And  if  either  the  judge  or  the  party  shall  proceed  after  such  prohibition, 
an  attachment  may  be  had  against  them,  to  punish  them  for  the  contempt, 
at  the  discretion  of  the  court  that  awarded  it ;  and  an  action  will  lie  against 
them,  to  repair  the  party  injured  in  damages." 

A  short  summary  of  the  manner  of  proceeding  in  prohibitions  is  as  fol- 
lows : 

"  The  party  aggrieved  in  the  court  below  applies  to  the  superior  court, 
setting  forth  in  a  suggestion  upon  record  the  nature  and  cause  of  his  com- 
plaint, in  being  drawn  ad  aliud  examen,  by  a  jurisdiction  or  manner  of  pro- 
cess disallowed  by  the  laws  of  the  kingdom  :  upon  which,  if  the  matter  al- 
leged appears  to  the  court  to  be  sufficient,  the  writ  of  prohibition  immedi- 
ately issues,  commanding  the  judge  not  to  hold,  and  the  party  not  to  pro- 
secute, the  plea.  But  sometimes  the  point  may  be  too  nice  and  doubtful 
to  be  decided  merely  upon  a  motion  :  and  then,  for  the  more  solemn  deter- 
mination of  the  question,  the  pariy  applying  for  the  prohibition  is  directed 
by  the  court  to  declare  in  prohibition ;  that  is,  to  prosecute  an  action,  by 
filing  a  declaration  against  the  other,  upon  a  supposition  or  fiction  (which 
is  not  traversable)  that  he  has  proceeded  in  the  suit  below,  notwithstanding 
the  writ  of  prohibition.  And  if,  upon  demurrer  and  argument,  the  court 
shall  finally  be  of  opinion  that  the  matter  suggested  is  a  good  and  suffi- 
cient ground  of  prohibition  in  point  of  lav/,  then  judgment  with  nominal 
■damages  shall  be  given  for  the  party  complaining,  and  the  defendant,  and 
also  the  inferior  court,  shall  be  prohibited  from  proceeding  any  farther.  On 
the  other  hand,  if  the  superior  court  shall  think  it  no  competent  ground  for 
restraining  the  inferior  jurisdiction,  then  judgment  shall  be  given  against 
him  who  "applied  for  the  prohibition  in  the  court  above,  and  a  writ  of  con- 
suUation  shall  be  awarded ;  so  called,  because,  upon  deliberation  and  con- 
sultation had,  the  judges  find  the  prohibition  to  be  ill-founded,  and  there- 
fore, by  this  writ,  they  return  the  cause  to  its  original  jurisdiction,  to  be 
there  determined,  in  the  inferior  court.  And,  even  in  ordinary  cases,  the 
writ  of  prohibition  is  not  absolutely  final  and  conclusive.  For  though  the 
ground  be  a  properjWDne  in  point  of  law  for  granting  the  prohibition,  yet  if 
the  fact  that  gave  rise  to  it  be  afterwards  falsified,  the  cause  shall  be  re- 
manded to  the  prior  jurisdiction.  For  the  party  prohibited  may  appear  to 
the  prohibition,  and  take  a  declaration,  (which  must  always  pursue  the  sug- 
gestion,) and  so  plead  to  issue  upon  it ;  denying  the  contempt,  and  travers- 
ing the  allegation  that  the  inferior  tribunal  is  trJiing  cognizance  of  a  matter 


204  OF  JOINDER  OF  ACTIONS.  [  book  3. 

not  within  its  jurisdiction  ;  and  if  this  appears,  a  writ  of  consultation  is 
awarded.  The  writ  of  consultation  may  also  be,  and  is  frequently,  grant- 
ed by  the  court  without  any  action  brought ;  when,  after  a  prohibition  is- 
sued, upon  more  mature  consideration  the  court  are  of  opinion  that  the 
matter  suggested  is  not  a  good  and  sufficient  ground  to  stop  the  proceed- 
ings below." 


CHAPTER  XIII. 

OF  JOINDER  OF  ACTIONS.' 

Where  the  plaintiff  has  two  causes  of  action,  which  may  be  joined  in  one 
action,  he  ought  so  to  proceed,  and  if  he  bring  two  actions,  the  court  will 
compel  him  to  consolidate  them,  and  to  pay  the  costs  of  the  application. 
2  T.  R.  639.  Tidd's  Prac.  3d  Edit.  556.  It  is,  therefore,  material  to  as- 
certain when  several  demands  may  be  included  in  the  same  action.  This 
may  be  considered  with  reference  to,  first,  the  joinder  of  different /onns  of 
action ;  secondly,  of  different  rights  of  action  ;  and  thirdly,  the  consequences 
of  misjoinder. 

1st.  Joinder  of  different  fonns  of  action.  The  joinder  in  action  depends 
on  the  fonn  of  the  action,  rather  than  on  the  subject  matter  of  it;  thus,  in 
an  action  against  a  carrier,  if  the  plaintiff  declare  in  assumpsit  he  cannot 
join  a  count  in  trover,  as  he  may  if  he  declare  against  him  in  case,  for  the 
joinder  depends  on  i\\e  form  of  action  ;  Per  Duller  J.  I  T.  R.  277.  And 
see  the  judgment  of  Ld.  Ellenborough,  C.  J.  in  3  East,  70,  and  I  Chit.  135 ; 
and  if  a  cause  of  action,  which  ought  to  be  laid  in  assumpsit,  be  improper- 
ly laid  in  case,  and  joined  with  a  count  in  trover,  no  objection  can  be  tak-" 
en  with  effect  on  the  ground  of  misjoinder,  but  only  the  particular  defective 
count  should  be  demurred  to.  6  East,  335,  6.  The  result  of  the  authori- 
ties is  stated  to  be,  that  when  the  same  plea  may  be  pleaded,  and  the  same 
judgment  given  on  all  the  counts  of  the  declaration,  or  when  the  counts  are 
of  the  same  nature,  and  the  same  judgment  is  to  be  given  on  them  all,  though 
the  pleas  be  different,  as  in  the  case  of  debt  upon  bond  and  on  simple  con- 
tract, they  may  be  joined.  2  Saund.  117,  n.  c.  1  T.  R.  276,  7.  Bac.  Ab. 
Actions  in  General.  Com.  Dig.  Action,  G.  By  this  rule  we  may  decide  in 
general  what  forms  of  action  may  be  joined  in  the  same  declaration. 

In  actions  in  form  ex  contractu,  the  plaintiff  may  join  as  many  different 
counts  as  he  has  causes  of  action  in  assumpsit;  so  also  in  covenant,  debt, 
account,  annuity,  or  scire  facias.  Bac.  Ab.  Actions  in  General,  C.  Com. 
Dig.  Actions,  G.  2  Vin.  Ab.  p.  42,  45,  46.  So  debt  on  bond  or  other  spe- 
cialty may  be  joined  in  the  same  action  with  debt  on  judgment,  or  on  sim- 
ple contract,  or  for  an  amerciament;  so  may  debt  and  detinue,  though  in 
these  cases  the  pleas  are  different,  and  in  the  latter  the  judgment  also  va- 
ries ;  2  Saund.  117,  b.  1  Wils.  252;  which  joinder  has  probably  been 
allowed,  because  the  practice  is  sanctioned  by  the  entries  in  the  Registrum 
Brevium.  Gilb.  C.  P.  5,  6,  7.  Bac.  Ab.  Actions  in  General,  C.  But 
where  the  defendant  would  on  bringing  error  on  a  judgment  in  debt  found- 
ed on  a  specialty,  be  compellable  to  find  bail  in  error  in  pursuance  of  the 
3  Jac.  1,  c.  8,  it  is  not  advisable  to  join  a  count  in  debt  on  simple  contract, 
the  judgment  on  which  would  not  require  bail  in  error  ;  2  East,  .359.  Tidd's 
Prac.  3d  edit.  1079 ;  so  several  counts  may  be  joined  in  one  action  on  a 
penal  statute,  for  different  penalties  of  a  similar  nature,  as  for  several  acts 
of  bribery.     4  T.  R.  229.     3  T.  R.  103.     2  Vin.  Ab.  44,  pi.  49. 

"This  chapter  is  taken  entiroly  from  1  Cliitly's  Pleadings.  It  did  not  occur  to  llieEdilor  until  the 
work  had  been  prinleil  thus  t';ir,  iliat  puch  a  dissertation"  was  very  essential.  Aa  it  was  too  late  to 
prepare  one,  he  has  adopted  31r.  Chilly's,  though  it  is  by  no  meaiiS  guch  aa  he  could  haye  desired  for 
the  use  of  the  student. 


CHAP.  13.]  OF  JOINDER  OF  ACTIONS.  205 

So  in  actions  m  form  ex  delicto,  several  distinct  trespasses  may  be  joined 
in  the  same  declaration,  2  Saund.  117,  b.  8  Co.  87,  b.  2  Vin.  Ab.  38, 
&c.,  and  several  causes  of  action  in  case  may  be  joined  with  trover;  Id. 
ibid.  1  T.  R.  277;  thus  case  against  a  common  carrier,  or  for  immode- 
rately riding  a  horse,  or  for  disturbing  the  plaintiff  in  his  right  of  common, 
or  for  hindering  him  from  landing  goods  upon  a  yard  of  the  defendant  con- 
trary to  agreement  between  them,  or  for  not  returning  to  the  plaintiff  a 
spaniel  delivered  to  the  defendant,  to  be  tried  and  returned  in  a  reasonable 
time,  but  keeping  and  detaining  the  same  from  the  plaintiff,  may  be  joined 
in  one  action  and  with  a  count  in  trover.  Id.  Ibid.  So  in  replevin  the 
plaintiff  may  in  the  same  declaration  count  of  several  takings  on  different 
days,  and  at  different  places  in  the  same  county,  Fitz.  N.  B.  68,  n.  a. 
Bull.  Ni.  Pri.  54.  2  Vin.  Ab.  41.  And  the  plaintiff  may  join  trespass 
with  a  count  for  a  battery  of  his  servant  ^er  quod  servitiiivi  amisit,  or  for 
debauching  his  servant,  Alleyn,  9.  Bac.  Ab.  Actions  in  General,  C.  3 
Wils.  18,  or  trespass  and  rescue  ;  2  Lutw.  1249.  Lord  Raym.  83.  Tidd. 
Prac.  3d  edit.  11,  n.  u. ;  though  the  loss  of  service,  and  consequence  of  the 
rescue,  are  properly  the  subjects  of  an  action  on  the  case ;  2  Chitty,  2G7, 
n.  u.  293  to  299 ;  however,  if  these  injuries  be  joined,  they  should  be  stat- 
ed to  have  been  commited  vi  et  armis. 

But  in  order  to  prevent  the  confusion  which  might  ensue,  if  different 
forms  of  actions,  requiring  different  pleas  and  different  judgments,  were  al- 
lowed to  be  joined  in  one  action,  it  is  a  general  rule  that  actions  in  form 
ex  contractu  cannot  be  joined  with  those  in  form  ex  delicto.  Thus  assump- 
sit, and  an  action  on  the  case,  as  for  a  tort,  cannot  be  joined,  1  T.  R.  276, 
7.  1  Vent.  366.  Carth.  189,  nor  assumpsit  with  trover,  2  Lev.  101.  3 
Lev,  99.  1  Salk.  10.  3  Wils.  354.  6  East,  335,  nor  trover  with  detinue. 
WiUes,  1 18.        • 

And,  with  the  above  exceptions,  counts  in  one  species  of  action  cannot 
be  joined  with  counts  in  another  ;  as  assumpsit,  covenant,  debt,  or  account 
with  each  other,  Bac.  Ab.  Actions  in  General,  C,  nor  trespass  with  case, 
for  they  are  actions  of  distinct  natures,  and  the  judgments  are  different; 
that  in  trespass  being  in  strictness  quod  capiatur,  and  that  in  case  quod  sit 
in  misericordia.  1  Lord  Raym.  272,  3.  2  Saund.  117,  e.  In  criminal 
proceedings,  the  joinder  of  different  offences  in  an  indictment  does  not  ren- 
der the  proceeding  defective,  though  it  is  a  matter  of  discretion  in  the  court, 
on  motion  to  quash  an  indictment  so  framed.     8  East,  46,  7.     3  T.  R.  103. 

2dly.  Joinder  of  several  rights  of  actions,  or  liabilities.  Where  the  same 
form  of  action  may  be  adopted  for  several  distinct  injuries,  the  plaintiff  may 
in  general  proceed  for  all  in  one  action,  though  the  several  rights  affected 
were  derived  from  different  titles  ;  but  a  person  cannot  in  the  same  action 
join  a  demand  in  his  own  right,  and  a  demand  as  representative  of  another 
or  in  auter  droit,  nor  demands  against  a  person  on  his  own  liability  and  on 
his  liability  in  his  representative  capacity.  Bac.  Ab.  Actions  in  General,  C. 
2  Vin.  Ab.  62.  Com.  Dig.  Actions,  G.  The  points  which  usually  occur 
in  practice,  may  be  considered  as  they  arise  in  actions  by  and  against  part- 
ners, husband  and  wife,  assignees  of  a  bankrupt,  executors  and  administra- 
tors, and  heirs  and  devisees. 

In  actions  by  or  against  several  persons,  whether  ex  contractu  or  ex  delicto, 
all  the  causes  of  action  must  be  stated  to  be  joint.  Thus'a  person  cannot 
bring  a  joint  action  against  two,  and  state  in  one  part  of  the  declaration 
that  one  of  them  assaulted  and  beat  him,  and  in  another  part  that  the  other 
took  away  his  goods,  for  the  trespasses  are  of  several  natures  and  ^gamst 
several  persons,  and  they  cannot  plead  to  this  declaration.  2  Saund.  117, 
a.  Sty.  153,  4.  4  T.  R.  360.  But  in  the  case  of  a  survivor  of  several  con- 
iracting  parties,  a  demand  by  Of  against  hira  as  sufvivor,  may  be  jomed 


206  OF  JOINDER  OF  ACTIONS.  [book  3. 

with  a  demand  due  in  his  own  right.     3  T.  R.  433.    5  T.  R.  493.     6  T. 

R.  582.     1  Esp.  Rep.  47. 

When  the  wife  is  co-phiintiff  in  an  action  ex  contractu,  no  cause  of  ac- 
tion can  be  inckided  unless  it  be  founded  on  a  contract  with  the  feme  be- 
fore marriage,  or  she  be  the  meritorious  cause  of  action,  and  her  interest 
must  expressly  appear  on  the  face  of  every  count.  1  Chitty,  '20.  2  Bla.  Rep. 
1236.  And  in  an  action  in  form  tx  delicto  for  a  personal  injury,  if  the 
wife  be  joined,  the  declaration  must  proceed  only  for  torts  to  her  individu- 
ally, and  not  for  such  wrongs  as  only  affect  the  husband.  1  Chitty,  61.  And 
for  torts  to  the  person  or  personal  property,  if  she  be  joined,  the  nature  of 
her  interest  therein  must  be  expressly  stated.  1  Chitty,  62.  And  an  action 
on  the  case  cannot  be  supported  against  the  husband  and  wife  for  words 
spoken  by  both.     Bac.  Ab.  Actions  in  General,  C.     2  Willes,  227. 

A  plaintiff  cannot  join  in  the  same  action  a  demand  as  executor,  with 
■another  in  his  own  right.     1  T.  R.  489.     2  Saund.  117,  d.     3  T.  R.  659. 
4  T.  R.  277.     Bac.  Ab.  Actions  in  General,  C.     Tidd's  Prac.  6th  ed.  13. 
The  contradiction  and  doubts  in  the  different  cases  to  be  met  with  in  the 
books  upon  this  point  are  merely  on  the  application  of  the  rule.     See  the 
-cases,  2  Saund.  117,  d.     6  East,  405.     In  the  late  case  of  Co  well  vs.  Watts, 
(6  East,  405,  and  see  1  Taunt.  322.     2  Marsh.  147.     2  Smith's  Rep.  416. 
Tidd's  Prac.  6th  edit.  13,)  it  was  decided,  that  a  count  upon  a  promise  to 
the  plainlifVas  administratrix,  for  goods  sold  and  delivered  by  her  as  such, 
after  the  death  of  the  intestate,  may  be  joined  with  a  count  upon  an  ac- 
oouut  stated  with  her  as  administratrix,  because  the  damages  and  costs 
when  recovered  would  be  assets;  and  Lorxl  EUenborough,  Ch.  J.  expressed 
xL  wish,  that  the  rule  laid  down  in  Bull  vs.  Palmer,  (2  Lev.  165,)  had  been 
abided  by,  viz.  :  that  where  the  money,  ivhen  recovered,  would  be  assets,  the 
executor  may  declare  for  it  in  his  representative  charact%r  ;\  and  Grose,  J. 
-observed,  that  the  best  line  to  adopt  in  determining  whether  counts  may  be 
joined,  is  to  consider  whether  the  sura  when  recovered  would  be  assets  ;   and 
Lawrence,  J.  observed,   "  that  the  reason  why  promises  made  to  a  plaintiff 
in  his  own  right  cannot  be  joined  with  promises  to  him  in  his  representa- 
tive character  is,  because  the  funds,  to  wliicii  the  money  and  costs  to  be  re- 
eo.vered  are  to  be  applied,  or  out  of  which  the  costs  are  to  be  paid,  are  dif- 
ferent, and  that  it  appeared  to  him   that  those  cases  in  which  the  rule  had 
been  laid  down,  that  counts  may  be  joined,  whenever  the  money  recovered 
under  them  would  be  assets,  afford  the  best  guide.     The  question  of  costs 
is  a  matter  of  very  different  consideration,  on  which  many  of  the  contrary 
decisions  have  proceeded.     The  reason  why  an  executor  suing  in  his  repre- 
sentative character  shall  not  be  liable  to  costs  if  he  fail,  is,  because  he  is 
supposed  not  to  be  cognizant  of  the  contracts  made  by  his  testator :  but  as 
he  must  be  cognizant  of  all  contracts  made  by  himself  personally,  though 
in  his  representative  character,  and  as  he  might  declare  upon  them  in  his 
own  right,  there  is  no  reason  why  he  should  be  exempt  from  costs,  in  case 
he  fail  in  liis  action  ;"   and   Le  Blanc,  J.  said,   "the  plain  and  intelligible 
line  is,  that  the  counts  may  be  joined,  whenever  the  money  when  recovered 
would  be  assets."     This  was  also  considered  to  be   the  criterion  whether 
the  counts  may  be  joined,  in  1  Taunt.  322.    2  Marsh.  147.    2  Smith's  Rep. 
416.     It  is  therefore  clear,  that  an  executor   or  administrator  may  declare 
as  such  for  money  paid  him  in  that  character,  and  may  join  such  count  with 
counts  on  promises  to  the  testator  or  intestate.     3  East,  104.     So  money 
had  and  received  by  the  defendant,  to  the  use  of  the  plaintiff  as  executor, 
(3  T.  R.  569.     2  Saund.  207,  8,)  and  an  account  stated  with  him  as  exe- 
cutor, of  moneys  due  and  owing  to  the  testator,  (5  East,  150.    6  East,  406, 
403.     1  T.  R.  487.     1  Taunt.  322.     2  Marsh.  147,)  or  to  the  plaintiff  as 
executor,  (6  East,  406,  403.     1  Taunt.  322.    2  Marsh.  147.    ace.  1  Ld. 


CHAP.  13.]  OP  JOINDER  OF  ACTIONS.  207 

Raym.  437.  2  Saund.  117,  d.  semb.  cont.)  may  be  joined  with  counts  on 
promises  to  the  testator  or  intestate.  And  where  the  plaintiff  declared  as 
executor  upon  a  bill  of  exchange  indorsed  to  him  in  that  character,  it  was 
bolden  sufficient,  (1  T.  R.  487.  6  East,  410,  413.  2  Vin.  Ab.  48,  pi.  9,) 
though  in  another  case  it  was  decided,  that  an  executor  cannot  join  a  count 
upon  a  bond  given  to  his  testator,  and  a  count  upon  a  bond  given  to  him  as 
executor,  in  the  same  action.  -3  Bos.  £c  Pul.  7.  Sed  vide  1  T.  R.  487.  G 
East,  105.  Where  six  years  have  elapsed  since  the  death  of  the  testator, 
or  intestate,  or  it  may  on  any  other  account  be  material  for  the  plaintiff  to 
avail  himself  of  a  promise  or  acknowledgment  since  the  death,  counts- 
should  be  introduced  in  the  declaration,  on  promises  to  the  executor  in  that 
character,  (see  the  form,  2  Chitty,  95,)  for  otherwise,  such  promise  or  ac- 
knowledgment cannot  be  given  in  evidence.  3  East,  409.  Willcs,  29.  In 
every  count  stating  debts  or  promises  to  the  executor  or  administrator  in 
that  character,  the  word  "as"  executor,  &c.  must  be  inserted.  5  East,  150. 
2  Marsh.  151.  But  see  2  Lev.  110.  2  Vin.  Ab.  47,  pi.  6.  48,  pi.  9.  2 
Bos.  &  Pul.  424. 

So  in  an  action  against  an  executor,  a  count  cannot  be  introduced  which 
would  charge  him  personally,  for  the  judgment  in  the  one  case  would  be 
de  bonis  testator  is,  and  in  the  other  de  bonis  propriis ;  2  Saund.  117,  d. 
Hob,  88.  2  Lev.  228.  2  Vin.  45,  pi.  52,  47,  pi.  5  ;  and,  therefore,  a  count 
for  money  lent  to  or  had  and  received  by  an  executor  as  such,  is  not  sus- 
tainable. 2  Saund.  117,  d.  4  T.  R.  347.  1  Hen.  Bla.  108.  But  of  late, 
counts  for  funeral  charges  against  the  executor  in  that  character  have  suc- 
ceeded. See  3  Camp.  298,  sed  quare.  And  in  an  action  of  covenant  against 
an  executor,  the  plaintiff  may  join  a  breach  by  the  testator  and  a  breach' 
since  his  decease;  10  East,  313;  and  an  account  stated  by  the  defendant 
as  executor  or  administrator,  of  moneys  due  from  the  testator  or  intestate 
may  be  supported,  and  may  be  joined  with  counts  upon  promises  by  the 
testator  or  intestate,  and  this  is  the  common  mode  of  declaring  against  ex- 
ecutors and  administrators,  to  save  the  statute  of  limitations;  2 Saund.  117, 
e.  1  Hen.  Blac.  102.  Forrest's  Rep.  Exchequer,  98  ;  and  though  it  has 
been  considered  that  a  count  upon  an  account  stated  by  an  executor  as 
such,  of  moneys  due  and  owing  from  hi7n  in  that  character,  cannot  be  join- 
ed with  counts  on  promises  by  the  testator,  on  the  ground  that  such  account 
stated  makes  the  executor  personally  liable,  (1  Hen.  Blac.  108,  114.  2 
Saund.  1 17,  d.  Tidd.  Prac.  3d  edit.  12.  2  Bos.  &  Pul.  224,)  yet  it  is  sub- 
mitted that  such  an  account  would  not  make  the  executor  personally  liable, 
and  as  it  has  been  decided  that  an  account  stated  ivith  an  executor  of  mo- 
neys due  and  owing  to  him  as  such,  may  be  joined  with  counts  on  promi- 
ses to  the  testator,  it  is  presumed  thattliis  question  would  now  meet  with  a 
different  decision.  Forrest's  Rep.  Exch.  98.  6  East,  405  to  412.  10 
East,  313.  Whenever  an  executor,  &c.  is  sued,  upon  promises  by  him 
in  that  character,  the  words  "as  executor,"  &.c.  must  be  inserted  in  each 
count.     2  Bos.  &  Pul.  424. 

3dly.  Consequences  of  misjoinder.  The  consequences  of  a  misjoinder 
are  more  important  than  the  circumstance  of  a  particular  count  being  de- 
fective, for  in  the  case  of  misjoinder,  however  perfect  the  counts  may  res- 
pectively be  in  themselves,  the  declaration  will  be  had  on  a  general  demur- 
rer, or  in  arrest  of  judgment,  or  upon  error;  2  Bos.  &  Pul.  424.  4  T.  R. 
347.  1  Hen.  Blac.  108 ;  the  demurrer  for  misjoiner  must  be  to  the  whole 
declaration,  and  not  merely  to  the  defective  count  or  breach.  1  M.  &.  S. 
355,  36G.  Tidd's  Prac.  Gth  edit.  11.  The  plaintiff  cannot,  if  the  decla- 
tion  be  demurred  to,  aid  the  mistake  by  entering  a  nolle  prosequi  so  as  to 
prevent  the  operation  of  the  demurrer ;  1  Hen.  Blac.  110,  111,  3,  4.  4  T. 
R.  360.     Tidd's  Prac.  3d  edit.  630.     1  Saun.  207,  c. ;  though  the  court 


208  OF  THE  PARTIES  TO  THE  ACTION.  [book  3. 

will  in  general  give  the  plaintiff  leave  to  amend  by  striking  out  some  of  the 
counts  on  payment  of  costs.  4  T.  R.  348.  In  some  cases,  however,  a 
misjoinder  may  be  aided  by  intendment  after  verdict,  ('2  Lev.  110.  Com. 
Dig.  Action,  G.  2  Vin.  Ab.  47,  pi.  6,)  and  by  taking  separate  damages, 
or  by  entering  a  rcmittit  damna,  the  misjoinder  may  be  aided  ;  2  M.  &  S. 
533.  11  Mod.  196.  2  Vin.  Ab.48,  pi.  9.  3  T.  R.  433;  and  though  it  is 
reported  to  have  been  decided,  that  if  assumpsit  and  trover  be  joined,  and 
there  be  a  verdict  for  the  defendant  on  the  count  in  trover,  that  does  not 
cure  the  declaration  ;  3  Lev.  99.  2  Lev.  lOL  T.  Raym.  233.  1  Salk. 
10.  3  Wils.  352.  2  Saun.  117,  d.;  that  doctrine  is  now  over-ruled.  2 
M.  &S.  533.     Hob.  219.     Glib.  Eject.  52.     Adams  Eject.   1st  edit.  30L 

There  are  no  rules  connected  with  the  science  of  pleading  so  important 
as  those  which  relate  to  the  persons  who  are  to  be  the  parties  to  the  action  ; 
for  if  there  be  any  mistake  in  this  respect,  the  plaintiff  is,  in  general,  com- 
pellable to  abandon  his  suit  and  to  proceed  ds  novo,  after  having  incurred 
great  expense  :  when,  with  respect  to  most  other  objections,  they  do  not 
thus  affect  the  proceeding  in  its  inception,  and  occasion  comparatively  but 
small  expense.  The  general  rule  is,  that  the  action  should  be  brought  in 
the  name  of  the  party  whose  legal  right  has  been  affected,  against  the  par- 
ty who  committed  the  injury,  8  T.  R.  332.  1  E.  499,  or  by  or  against  their 
personal  representatives  ;  and  therefore  a  correct  knowledge  oi  legal  rights, 
and  of  wrongs  remediable  at  law,  will,  in  general,  direct  by  and  against 
whom  the  action  should  be  brought.  But,  as  in  the  application  of  this  rule, 
difficulties  frequently  occur,  and  as  there  are  many  particular  rules  relating 
to  the  joinder  of  persons  in  actions,  and  to  the  mode  in  which,  and  the 
tme  when,  a  mistake  of  parties  should  be  objected  to  or  be  rectified,  it  is 
advisable,  before  we  consider  the  form  of  the  action,  and  the  pleadings  there- 
in, to  take  a  concise  view  of  these  rules,  which  I  shall  consider  under  two 
general  heads.  First,  when  the  action  is  m  form*  ex  contractu;  and  second- 
ly, when  it  is  in  form  ex  delicto  :  and  under  each  of  these  heads  I  shall 
state,  first,  who  are  to  be  the  plaintiffs;  and,  secondly,  who  are  to  be  the 
defendants. 

1.  In  actions  in  form  ex  contractu.  The  rules  which  direct  who  are  to 
be  the  parties  to  an  action  in  form  ex  contractu,  whether  as  plaintiffs  or  de- 
fendants, are  to  be  considered,  /?rs<,  as  between  the  original  parties  to  the 
contract;  and  secondly,  where  there  has  been  a  change  of  parties,  interest, 
or  liability.  And  under  the  first  head,  with  reference  to  the  interest  or  lia- 
bility of  the  parties,  as  whether  legally,  or  only  beneficially  interested,  or 
acting  merely  as  agent,  or  standing  in  the  situation  of  joint-tenants,  ten- 
ants in  common,  partners,  &,c.  and  in  the  case  of  several  contracting  par- 
ties, who  must  or  may  join,  or  be  joined  ;  and  under  the  second  head,  where 
there  has  been  an  assignment  of  interest  or  change  of  credit — survivorship 
between  several — death — bankruptcy — insolvency — or  marriage.  We  will 
consider  these  rules,  first  as  they  relate  to  the  plaintiff  in  an  action. 

2.  Plaintiffs.  1st.  As  between  the  original  parties,  and  with  reference 
to  the  interest  of  the  plaintiff  in  the  contract.  In  general  the  action  on  a 
contract,  whether  express  or  implied,  or  whether  by  parol  or  under  seal,  or 
of  record,  must  be  brought  in  the  name  of  the  party  in  whom  the  legal  in- 
terest, in  such  contract,  is  vested.  Anderson  vs.  IMartindale,  1  East,  497. 
Dawes  vs.  Peck,  8  T.  R.  332.  1  Saund.  153,  note  L  Thimblethrop  vs. 
Hardesty,  7  Mod.  116.  2  Saunders  on  U.  and  T.  222.  Doe  d.  Hodsden 
vs.  Staple,  2  T.  R.  696.     Bauerman  vs.  Radinius,  7  T.  R.  664 ;  but  see 

"  A  plaintiff  frequently  lias  an  election  to  proceed  even  for  n  breach  of  an  express  contract  either 
in  assumpsit  or  in  case:  and  when  tlie  latter  form  of  action  is  adopted,  many  of  the  rules  as  to  tha 
parties  to  the  action  do  not  apply.  See  3  East,  70.  6  T.  R.  766.  6  East,  333,6.  And  therefore  I 
have  considered  the  following  rules  in  their  relation  to  the  form  of  the  action,  rather  than  to  the  sub- 
ject matter  of  it. 


CHAP.  13.]  OF  THE  PARTIES  TO  THE  ACTION.  209 

Smith  vs.  Jameson,  5  T.  R.  602,  3.  Thus  the  action  against  a  carrier  for 
the  loss  of  goods,  must  in  general  be  brought  in  the  name  of  the  consignee, 
and  not  of  the  consignor,  Dawes  vs.  Peck,  8  T.  R.  330.  2  Saund.  47,  k. 
Bui.  N.  P.  36.  Godfrey  vs.  Forzo,  3  P.  Wms.  186.  Button  vs.  Solomon- 
son,  3  B.  &  P.  684.  Brown  and  others  vs.  Hodgson,  2  Camp.  36,  the  law 
implying  the  contract  by  the  carrier  to  have  been  made  with  the  consignee, 
in  whom  the  property  in  the  goods  was  vested  by  the  delivery  to  the  carrier. 
And  though  a  covenant  with  several  persons  be  joint  and  several  in  the 
terms  of  it,  yet  if  the  legal  interest  and  cause  of  action  be  joint,  the  action 
must  be  brought  by  all  the  covenantees:  and  on  the  other  hand,  if  the  in- 
terest and  cause  of  action  be  several,  the  action  may  be  brought  by  one 
only,  though  the  covenant  be  in  the  terms  of  it  only  joint.  1  Saund.  153, 
&  n.  L*  And  as  a  covenant  to  and  with  A,  his  executors,  administrators, 
and  assigns,  and  to  and  with  B  and  her  assigns,  to  pay  an  annuity  to  A, 
his  executors,  Sec.  during  B's  life,  is  a  joint  covenant  to  A  and  B,  in  which 
they  have  a  joint  legal  interest,  although  the  benefit  be  for  A  only  ;  there- 
fore on  the  death  of  A,  the  right  of  action  survives  to  B,  and  A's  adminis- 
trator cannot  sue  on  the  covenant,  because  the  action  follows  the  nature  of 
the  legal  interest.  Anderson  vs.  Martindale,  1  East,  497.  Rolls  vs.  Yate, 
Yelv.  177. 

When  a  bond  is  made  to  A  to  pay  him  or  a  third  person  a  sum  of  money 
for  the  benefit  of  the  latter,  the  action  must  be  brought  in  the  name  of  A, 
and  the  third  person  cannot  even  release  the  demand.  Offly  vs.  Warde,  1 
Lev.  235.  2  Inst.  673.  Gilby  vs.  Copley,  3  Lev.  139.  3  B.  &  P.  149,  n. 
a.  6  Vin.  Ab.  tit.  Covenant,  374.  Scholey  et  al.  vs.  Mearns,  7  East,  148. 
Com.  Dig.  tit.  Covenant,  A.t  And  when  a  deed  is  made  inter  partes,  (i.  e. 
between  A  of  the  first  part  and  B  of  the  second  part,)  C,  a  stranger,  can- 
not sue  on  a  covenant  therein,  though  made  for  his  benefit.  Gilby  vs.  Cop- 
ley, 3  Lev.  139.  3  B.  &  P.  149,  n.  a.  Salter  vs.  Kingley,  Carth.  76.  2 
Mod.  Ca.  116.  2  Inst.  673.  Co.  Lit.  231,  a.  But  when  the  deed  is  not 
inteji  partes,  he  may  sue  whether  it  be  indebted  or  not.  Id.  ibid.  Com. 
Dig.  tit.  Covenant,  A.  1.  And  Cooker  vs.  Child,  2  Lev.  74.  Greene  vs. 
Home,  1  Salk.  197.  And  upon  a  single  bond  or  deed  poll,  reciting  that 
the  obligor  had  received  of  A  £40,  for  the  use  of  C  and  D,  equally  to  be 
divided,  to  be  repaid  at  such  a  time  as  should  be  thought  best  for  the  profit 
of  C  and  D,  it  was  decided  that  C  and  D  might  maintain  separate  actions 
for  their  respective  moieties.  Shaw  vs.  Sheerwood,  Cro.  El.  729.  And 
when  a  contract  not  under  seal  is  made  with  A  to  pay  B  a  sum  of  money, 
B  may  sustain  an  action  in  his  own  name :  3  B.  &.  P.  149,  n.  a.  March- 
ington  vs.  Vernon,  cited  1  B.  &  P.  101,  n.  c.  B.  N.  P.  103,  4.  Dutton, 
et  ux  vs.  Poole,  2  Lev.  210,  S.  C.  1  Ventr.  318,  S.  C.  Sir  T.  Raym.  302. 
SirT.  Jones,  102,  S.  C.  Martyn  vs.  Hind,  Cowp.  437.  Cramlington  vs. 
Evans,  et  al.,  2  Ventr.  310.  Israel  vs.  Douglas,  et  al.,  1  H.  B.  439.  Sur- 
tees  et  al.  vs.  Hubbard,  4  Esp.  R.  204,  ace.  1  Vin.  Ab.  333,  to  337,  cited 
in  3  B.  &  P.  149.  Crow  vs.  Rogers,  1  Stra.  592.  Bourne  vs.  Mason  et  al., 
1  Ventr.  6.  1  Powel  on  Cont.  353.  B.  N.  P.  134,  cont. :  but  if  the  pro- 
mise had  been  to  pay  A  for  the  use  of  B,  A  is  a  trustee,  and  B,  having  no 
legal  interest,  cannot  sue.  Cramlington  vs.  Evans  et  al.,  2  Ventr.  310. 
Evans  vs.  Cramlington,  Carth.  5.  Offly  vs.  Warde,  1  Lev.  235.  Company 
of  Feltmakers  vs.  Davis,  1  B.  &  P.  98. 

In  general  a  mere  servant  or  agent,  with  whom  a  contract  is  made  on  be- 
half of  another,  cannot  support  an  action  thereon.  But  when  an  agent 
has  any  beneficial  interest  in  the  performance  of  the  contract  for  coramis- 

•  See  2  Mod.  83.    5  Co.  18,  b.    1  East,  497.    3  Mod.  26U,  and  the  case  of  Carthrar  r^.  Brown,  re- 
ported by  Mr.  Leigh. 
tSeellCL.  R.251. 

VOL.  2—27 


210  OF  THE  PARTIES  TO  THE  ACTION.  [  book  3. 

sion,  he,  as  in  the  case  of  a  factor,  a  broker,  an  auctioneer,  a  policy-bro- 
ker whose  name  is  on  the  policy,  or  the  captain  of  a  ship  for  freight,  he 
may  sustain  an  action  in  his  own  name;  in  each  of  which  cases,  however, 
the  principal  or  owner  might  sue. 

2dly.  With  reference  to  the  number  of  plaintiffs  ;  and  who  ynust  joiu. 
When  the  contract  was  made  with  several,  whether  it  were  under  seal  or 
by  parol,  if  their  legal  interest  were  joint,  they  must  all,  if  living,  join  in 
an  action  in  form  ex  contractu,  for  the  breach  of  it,  though  the  covenant  or 
contract  with  tliem  were  in  terms  joint  and  several :  the  reason  assigned 
is,  that  when  the  interest  is  joint,  if  several  were  to  be  permitted  to  bring 
actions  for  one  and  the  same  cause,  the  court  would  be  in  doubt  for  which' 
of  them  to  give  judgment;  therefore  where  A  declared  upon  an  account 
stated  with  him,  of  moneys  due  to  him  and  a  third  person,  after  verdict 
judgment  was  arrested  on  the  ground  that  the  promise,  whether  express  or 
implied,  must,  in  point  of  law,  be  considered  as  made  to  all  the  persons 
whose  debt  it  was,  and  therefore  they  ought  to  have  joined  in  the  action. 

But  when  the  legal  interest  and  cause  of  action  of  the  covenantees  is-^ 
several,  each  may  sue  separately  for  his  particular  damage,  although  the 
words  of  the  covenant  are  joint  only  ;  and  in  case  of  a  joint  interest,  if  two 
out  of  three  parties  have  been  paid  tlieir  shares,  the  third  may,  in  respect- 
of  such  severance,  sue  alone  for  his  proportion.* 

In  the  case  of  a  deed,  if  one  or  more  of  several  obligees  or  covenantees, 
ivho  ought  when  living  to  join,  be  dead,  or  did  not  seal  the  contract,  that 
fact  should  be  averred  in  the  declaration  at  the  suit  of  the  others,  or  the 
defendant  may  crave  oyer,  and  demur;  but  if  the  plaintiff  be  prepared  to 
prove  the  death  of  the  party,  the  omission  of  the  statement  of  the  death  in 
the  declaration  would  be  no  ground  of  nonsuit. 

In  all  cases  of  contracts,  if  it  appear  upon  the  face  of  the  pleadings  that 
there  are  other  obligees,  covenantees,  or  parties  to  the  contract,  who  ought 
to  be,  but  are  not  joined  in  the  action,  it  is  fatal  on  demurrer,  or  on  motion 
in  arrest  of  judgment,  or  on  error;  and  though  the  objection  may  not  ap- 
pear on  the  face  of  the  pleadings,  the  defendant  may  avail  himseif  of  it 
either  by  plea  in  abatement,  or  as  a  ground  of  nonsuit  in  the  trial  upon  the 
plea  of  the  general  issue.  However,  when  a  partner  has  withdrawn  his 
name  from  the  fum^  although  he  may  continue  to  receive  part  of  the  profits 
as  a  dormant  partner,  it  is  not  a  ground  of  nonsuit  that  his  name  is  not 
joined  in  the  action  ;  but  where  the  name  of  a  person  is  used  in  a  firm,  ho 
must  be  a  co-plaiutilf,  though  he  has  no  real  interest.  When  the  objection 
appears  on  the  face  of  the  pleadings,  it  is  sometimes  advisable  to  demur  in- 
order  to  obtain  costs,  as  each  party  pays  his  own  costs  when  the  judgment 
is  arrested. 

Who  7nay  join.  At  law,  as  well  as  in  equity,  the  courts  will  not  take 
cognizance  of  distinct  and  separate  claims  or  liabilities  of  dilTcrcnt  persons 
in  one  suit,  though  standing  in  the  same  relative  situation  ;  and  if  too  many 
persons  be  made  plaintiffs,  the  action  will  fail  ;  and  if  the  legal  interest  of- 
tVvo  or  more  be  several,  and  there  be  no  express  contract  with  all,  they  must 
sue  separately;  where  therefore  A,  B,  and  C  were  appointed  assignees  un- 
der a  commission  of  bankrupt,  and  A  and  B  paid  each  half  of  the  solicitor's 
bill,  it  was  decided  that  A  and  B  could  not  maintain  a  joint  action  against 
C  for  his  proportion  of  the  money  paid,  but  must  each  bring  a  separate  ac- 
tion, and  A  and  B  having  sued  jointly,  were  nonsuited.  But  when  the  in- 
terest is  jointly  vested  in  several,  they  may  and  ought  to  join;  thus  if  A 

•'Two  sureties  joined  in  nssnmpsit  againsi  tlicir  principal,  each  liaving  pai<I  liis  proporiion  of  wlinl 
llif y  were  bound.  Al'icr  veniici  lor  pluintilVs  ilicre  was  a  rule  lo  sliinv  cause  wliy  a  new  dial  slionld' 
3>ol  Ijc  graHted.    1  Carr  iSt  l';n  ne,  M.    fcsec  0  \u.  2J5.    '6  iios.  &  I'ul.  i.'J5. 


CHAP.  13.]  OF  THE  PARTIES  TO  THE  ACTION.  211 

^nd  B  in  the  last  case  had  borrowed  money  which  they  paid  on  their  joint 
credit,  they  might  have  joined  in  the  action  against  C. 

Tenants  in  common  may  join  or  sever  in  an  action  on  a  contract  relating 
to  their  estate,  though  they  must  sever  in  an  avowry  for  rent,  and  the  de- 
mand must  be  de  una  medietale  of  the  rent,  and  not  of  a  sum  of  money 
generally,  though  it  may  be  the  exact  moiety.  Joint  tenants  must,  in  all 
-cases,  join  in  an  action  ex  contractu.  Parceners  also  must  join  in  all  ac- 
tions concerning  their  estate,  and  if  one  of  them  die  pending  a  real  action 
it  will  abate,  though  it  is  otherwise  in  mere  personal  actions. 

3dly.  When  the  interest  in  the  contract  has  been  assigned.  When  the 
party  with  whom  a  bond,  simple  contract,  or  other  mere  personal  contract 
was  made,  has  assigned  his  interest  therein  to  a  third  person,  the  latter  can- 
not, in  general,  by  the  common  law,  sue  in  his  own  name  ; — personal  con- 
tracts being  choses  in  action,  which  are  not,  in  general,  assignable  at  law, 
so  as  to  give  the  assip-nee  a  riffht  of  action  in  his  own  name,  but  he  must 
proceed  in  that  of  the  assignor,  or  if  he  be  dead,  in  the  name  of  his  per- 
sonal representative.  [Assignees  of  all  bonds,  bills,  promissory  notes  and 
other  writings  obligatory  whatsoever,  may  by  our  law  sue  in  their  own  name. 
See  book  2,  title  Assignments.]  And  in  the  case  of  a  negotiable  bill  of  ex- 
change, the  assignee  may  by  the  custom  of  merchants  sue  in  his  own  name. 
And  in  case  of  a  covenant  running  with  the  estate  in  land,  &,c.  an  assignee 
of  such  estate  should  be  the  plaintiff,  for  any  breach  of  such  covenant  com- 
mitted after  he  became  legally  entitled  to  the  reversion,  and  this  without 
even  alleging  or  proving  an  attornment.  And  in  such  case  the  assignor 
'.<;annot  distrain  for  rent  due  before  the  assignment,  nor  can  he  sue  for  any 
subsequent  breach. 

4thiy.  When  one  of  several  obligees,. &c.  is  dead.  When  one  or  more 
-of  several  obligees,  covenantees,  partners,  or  others,  having  a  joint  legal  in- 
terest in  the  contract,  dies,  the  action  must  be  brought  in  the  name  of  the 
survivor,  and  the  executor  or  administrator  of  the  deceased  cannot  be  join- 
ed, nor  can  he  sue  separately,  though  the  deceased  alone  might  be  entitled 
to  the  beneficial  interest  in  the  contract,  and  the  executor  must  resort  to  a 
court  of  equity  to  obtain  from  the  survivor  the  testator's  share  of  the  sum 
recovered  :  but  if  the  interest  of  the  covenantees  were  several,  the  executor 
of  one  of  them  may  sue  though  the  other  be  living.  In  an  action  at  the 
suit  of  a  surviving  partner,  he  may  include  a  debt  due  to  him  in  his  own 
separate  right.  In  the  case  of  a  deed,  we  have  seen  that  it  is  necessary  to 
declare  as  surviving  obligee,  &c. ;  but  in  other  cases,  where  the  defendant 
cannot  crave  oyer  and  demur,  it  does  not  appear  to  be  necessary  to  state 
the  death  of  the  deceased  partner  in  the  declaration,  though  it  is  more  usual 
to  do  so. 

5thly.  In  the  case  of  executors  or  administrators,  heirs,  &-c.  In  the  case 
of  a  mare  personal  contract,  or  of  a  covenant  not  running  with  the  land,  if 
it  were  made  only  with  one  person,  and  he  be  dead,  the  action  for  the 
"breach  of  it  must  be  brought  in  the  name  of  the  executor  or  administrator 
in  whom  the  legal  interest  in  such  contract  is  vested  ;  and  if  it  were  made 
with  several  persons,  though  during  the  life  of  the  survivor  of  them,  we  have 
seen  that  the  action  must  be  brought  in  his  name,  yet  upon  his  death  his 
•executors  or  administrators  alone  can  sue,  and  the  personal  representatives 
of  the  partner  who  first  died  cannot  be  joined.  If  there  be  several  execu- 
tors or  administrators,  they  ought  all  to  join,  though  some  be  under  the  age 
of  seventeen  years,  or  have  not  proved  the  will,  or  have  even  refused  before 
the  Ordinary.  If,  however,  only  one  of  several  executors  or  administra- 
tors bring  an  action  either  of  debt  or  assumpsit  or  in  tort,  it  is  settled  that 
the  defendant  can  only  take  advantage  of  the  non-joinder  of  the  co-execu- 
tor or  co-administrator  by  pleading  in  abatement  after  oyer  oi  the  probats 


212  OF  THE  PARTIES    TO  THE  ACTION.  [  BOOK  3. 

of  letters  of  administration,  that  the  otlicr  executor  or  administrator  there- 
in mentioned  is  alive  and  not  joined  in  the  action.  This,  it  is  observable, 
is  a  material  distinction  between  the  effect  of  the  non-joinder  of  a  party 
when  he  sues  in  autre  droit,  and  when  in  his  own  right.  In  the  latter  case 
we  have  seen  that  the  omission  would  be  a  cause  of  nonsuit.  An  executor 
may  sue  as  such  upon  the  contract  made  with  him  in  that  character  as  for 
goods  sold  by  him  as  executor,  and  in  other  cases  when  the  sum  to  be  re- 
covered would  be  assets  ;  but  an  executor  cannot  sue  as  such  upon  a  pe- 
nal statute. 

When  an  executor  dies  after  he  has  proved  the  will,  his  cxcutor,  or  the 
executor  of  such  executor,  is  the  party  to  sue  on  the  contract  made  with , 
the  original  testator,  and  may  declare  without  noticing  the  first  executor; 
but  an  administrator  of  the  first  executor,  or  an  executor  of  the  first  admin- 
istrator, cannot  sue  in  that  character,  and  in  such  case  administration  de 
bonis  non  must  be  obtained.  In  a  declaration  by  an  administrator  de  bonis 
non,  a  count  may  be  added  on  a  promise  to  the  first  administrator. 

8thly.  In  case  of  marriage.  A  feme-covert  cannot  in  any  case  sue  alone 
unless  her  husband  be  civiliter  mortuus,  or  transported  for  some  crime.  She 
may  in  all  cases  join  in  an  action  with  her  husband,  when  the  cause  of  ac- 
tion would  survive  to  her;  or  when  she  is  the  meritorious  cause  of  ac- 
tion, and  there  has  been  an  express  contract  with  her;  and  she  must  pin 
■when  the  cause  of  action  would  necessarily  survive  to  her. 

As  choscs  in  action  of  the  wife  do  not  by  the  marriage  vest  absolutely  in 
the  husband  until  he  reduce  them  into  possession,  in  general  he  cannot  sue 
alone,  but  must  join  with  his  wife  in  all  actions  upon  bonds  and  other  per- 
sonal contracts  made  with  the  wife  before  the  marriage,  whether  the  breach 
were  before  or  during  the  coverture,  and  also  for  rent  or  any  other  cause  of 
action  accruing  before  the  marriage,  in  respect  of  the  real  estate  of  the 
wife.  There  are  indeed  decisions  and  opinions  which  appear  to  militate 
against  this  rule;  but  the  current  of  authorities  seems  fully  to  establish  it, 
and  it  is  observable  that  it  prevails  also  in  equity  and  in  cases  of  bankrupt- 
cy;  and  that  the  rule  is  the  same  when  the  action  is  brought  on  a  contract 
made  by  a  feme  whilst  sole,  in  which  case  the  husband  cannot  be  sued 
alone.  And  when  the  wife  is  executrix  or  administratrix,  as  lier  interest  is 
in  autre  droit,  they  must  in  general  join  in  the  action.  But  if  in  respect  of 
a  contract  made  to  the  wife  whilst  sole,  the  party  thereto,  after  the  mar- 
riage, give  a  bond  to  the  husband  and  wife,  or  in  respect  of  some  new  con- 
sideration, as  forbearance,  &c.  make  a  parol  promise  to  the  husband  and 
wife,  they  may  join,  or  the  husband  may  sue  alone  upon  such  new  contract; 
and  if  such  bond  or  parol  promise  were  made  to  the  husband  alone,  he 
alone  should  sue  thereon,  the  wife  not  being  privy  to  the  contract;  or  he 
should  join  with  the  wife  on  the  original  contract  in  cases  where  it  is  not 
merged  by  a  higher  security  ;  and  the  rule  is  the  same  when  the  feme  is 
executrix  or  administratrix,  though  in  the  latter  case  it  is  said  that  it  should 
be  averred  in  the  declaration  that  she  is  still  living. 

In  general,  the  wife  cannot  join  in  any  action  upon  a  contract  made  dur- 
in£^  the  marriage,  as  for  her  work  and  labor,  goods  sold,  or  money  lent  by 
licr  during  that  time;  for  the  husband  is  entitled  to  her  earnings,  and  they 
shall  not  survive  to  her,  but  go  to  the  j)ersonal  rej)resentatives  of  the  hus- 
band, and  she  could  have  no  property  in  the  money  lent  or  the  goods  sold. 
But  when  the  wife  can  be  considered  as  the  meritorious  cause  of  action,  as 
if  a  bond  or  other  contract  under  seal  be  made  to  her  separately,  or  with 
her  husband,  or  in  the  case  of  her  personal  labour,  &c.  if  there  be  an  ex- 
press promise  to  her,  or  to  her  and  her  husband,  she  may  join  with  the  hus- 
band, or  he  may  sue  alone;  and  it  has  been  holden  that  she  may  be  joined 
in  all  cases  upon  an  express  promise  to  her.  And  a  feme  covert  executrix 
must  join  in  an  action  upon  any  implied  promise  in  respect  of  the  estate 


CHAP.  13.]  OF  THE  PARTIES  TO  THE  ACTION.  213 

of  the  deceased,  as  if  money,  part  of  the  assets  of  the  testator,  be  receiv- 
ed by  a  party  after  the  coverture,  in  which  case  the  hiisl)and  cannot  sue 
alone  in  assumpsit  as  for  money  liad  and  received  to  his  use,  but  he  and  his 
wife  must  join,  and  declare  in  the  character  of  executrix,  tlioii<,rh  we  have 
seen  that  he  may  sue  alone  upon  an  express  contract  made  with  him  in  con- 
sideration of  forbearance,  &,c.  For  rent  or  other  cause  of  action  accruinrr 
during  the  marriage  on  a  lease  or  demise,  or  other  contract  relating  to  the 
land  or  other  real  property  of  the  wife,  whether  such  contract  were  made 
before  or  during  the  coverture,  the  husband  and  wife  may  join,  or  he  may 
sue  alone  ;  and  when  a  lease  for  years  has  been  granted  to  husband  and 
wife,  and  the  lessor  evicts  them,  they  may  join,  or  the  husband  may  sue 
^'lone ;  and  in  all  actions  for  a  profit,  &,c.  accruing  during  coverture  in 
right  of  the  real  estate  of  the  wife,  they  may  join,  or  the  husband  may  sue 
alone.  But  in  these,  and  indeed  in  all  cases,  if  the  wife  be  joined  in  the 
action,  her  interest  must  be  expressly  stated  in  the  declaration,  and  cannot 
be  intended.  The  effect  of  joining  the  wife  in  an  action  when  the  husband 
might  sue  alone  is,  that  if  the  husband  die  whilst  it  is  pending,  or  after 
judgment  and  before  it  is  satisfied,  the  interest  in  the  cause  of  action  will 
survive  to  the  wife,  and  not  to  the  executors  of  the' husband,  though  if  he 
sued  alone  she  would  have  had  no  interest.  In  the  case  of  the  civil  death 
of  the  husband,  or  even  where  he  has  been  transported  for  a  term  of  years, 
the  wife  may  sue  alone  upon  any  contract  made  with  her  during  that  time, 
even  though  the  term  of  transportation  may  have  expired,  if  he  have  not  re- 
turned to  this  country.  But  in  the  case  of  a  feme  sole  trader,  according  to 
the  custom  of  London  she  can  only  sue  and  be  sued  in  the  city  courts, 
and  the  husband  must  be  joined  for  conformity. 

If  the  husband  survive,  there  is  a  material  distinction  between  cliattels 
real  and  choses  in  action.  The  husband  is  entitled  to  the  chattel  real  by 
survivorship,  and  to  all  rent,  &.c.  accruing  during  the  coverture  ;  lie  is  also 
entitled  to  all  chattels  given  to  the  wile  during  the  coverture  in  her  own 
right,  though  not  to  her  rights  in  autre  droit.  And  choses  in  action,  or  con- 
tracts made  with  the  wife  before  coverture,  except  arrears  of  rent,  do  not 
survive  to  the  husband,  and  he  must,  to  recover  the  same,  sue  as  adminis- 
trator of  his  wife.  And  he  may  sue  as  administrator  on  a  bond  to  his  wife 
during  coverture.  And  if,  pending  an  action  by  husband  and  wife  for  such 
chose  in  action,  the  wife  die,  the  suit  abates,  but  if  they  obtain  judgment, 
he  may,  notwithstanding  her  subsequent  death,  issue  execution  or  support 
an  action  of  debt  on  such  judgment. 

If  the  wife  survive,  she  is  entitled  to  all  chattels  real  which  her  husband 
had  in  her  right,  and  which  he  did  not  dispose  of  in  his  life-time,  and  to 
arrears  of  rent,  &c.  which  became  due  during  the  coverture  upon  her  an- 
tecedent demise,  or  upon  their  joint  demise  during  the  coverture  to  which 
she  assents  after  his  death,  and  to  all  arrears  of  rent  and  other  choses  in 
action  to  which  she  was  entitled  before  the  coverture,  and  which  the  hus- 
band did  not  reduce  into  actual  possession  ;  and  even  to  a  debt  due  upon  a 
judgment  recovered  by  husband  and  wife,  whether  obtained  for  a  debt  due 
to  the  wife  whilst  sole,  or  upon  a  contract  made  with  the  wife  during  co- 
verture, where  she  is  the  meritorious  cause  of  action  ;  and  she  is  entitled 
to  a  bond  given  to  her  and  her  husband,  or  to  her  alone:  slie  is  also  enti- 
tled to  all  rights  of  action  in  autre  droit,  as  executrix  or  administratrix:  and 
in  all  these  cases  where  the  wife  is  joined  in  the  action,  if  the  husband  die 
pending  the  suit  it  will  not  abate,  and  the  wife  may  proceed  to  judgment 
;ind  execution,  the  death  of  the  husband  being  suggested  upon  the  record. 
And  when  a  feme  executrix  marries  a  debtor  to  the  testator,  the  right  of 
action  is  only  suspended  during  the  coverture,  and  if  she  survive  she  may 
in  her  character  of  executrix  sue  the  executors  of  the  husband.     But  if  the 


214  OF  THE  PARTIES  TO  THE  ACTION.  [  book  3. 

husband  make  a  separate  demise  of  the  v/ife's  land,  his. executor  will  be 
entitled  to  the  rent  Vvhich  became  due  before  his  death,  and  not  his  surviv- 
ing wife. 

The  consequences  of  a  mistake  in  the  proper  parties,  in  the  case  of  ba- 
ron and  feme,  are,  that  when  a  married  woman  might  be  joined  in  the  ac- 
tion with  her  husband,  but  sues  alone,  the  objection  can  only  be  pleaded  ia 
abatement,  and  not  in  bar,  though  the  husband  might  sustain  a  writ  of  er- 
ror ;  and  if  she  marry  pending  the  suit,  her  coverture  must  be  pleaded  in 
abatement  at  the  hrst  opportunity,  or  it  cannot  be  given  in  evidence.     But 
when  a  feme  improperly  sues  alone,  having  no  legal  right  of  action  what- 
ever, she  will  be  nonsuited  ;   and  if  she  iniproperly  join  in  an  action  wit^ 
her  husband,  who  ought  to  sue  alone,  the  defendant  may  demur,  or  thr 
judgment  will  be  arrested,  or  reversed,  on  a  writ  of  error.     And  if  the  hus- 
ban'd  sue  alone,  when  the  wife  ought  to  be  joined  either  in  her  own  right 
or  in  autre  droit,  he  will  be  nonsuited ;  or  if  the  objection  appear  on   the 
record,  it  will  be  fatal  in  arrest  of  judgment  or  on  error. 
2.  We  come  next  to  speak  of  the  parties  defendant. 
1st.  As  between  the  original  parties  ;   and  with  reference  to  the  liability 
of  the  party.     The  action   upon   an   express  contract  must  in   general  be 
brought  against  the  party  who  made  it,  either  in  person  or  by  agent;  but 
difficulties  frequently  occur  in  regard  to  implied  contracts,  vvhich  are  creat- 
ed by  law  in  respect  of  the  existing  debt  or  duty  ;   in  these  the  action  should 
ibe  against  the  person  who  is  subject  to  the  legal  liability. 

'Partners,  tenants  in  common,  &c.     At  law  one  partner  or  tenant  in  com- 
mon cannot  in  general  sue  his  co-partner  or  co-tenant  in  any  action  'inform 
,ex  contractu,  but  must  proceed  by  action  of  account,  or  by  bill  in  equity,; 
;-a  rule  founded  on  the  nature  of  the  situation  of  the  parties,  the  difticulty 
;at  law^  of  adjusting  complicated  accounts  between  them,  and  the  propriety 
;arising  from  the  confidence  reposed  by  the  parties  in  each  other,  of  their 
'being  examined  upon  oath,  which  can  only  be  effected  in  a  court  of  equity. 
Therefore,  in  the  case  of  a  partnership,  one  partner  cannot  at  law  recover 
:a  sum  of  money  received  by  the  other  on  account  of  the  firm,  unless  on  a 
'balance  struck  that  sum  is  found  to  be  due  to  him  alone.     And  in  an  action 
by  several  as  executors,  a  plea  in  bar  that  the  promises  were  made  by  the 
•  defendants  jointly  with  one  of  the  plaintiffs' is  sufficient.     But  if  one  of  two 
or  more  partners  expressly  covenant  or  agree  to  account,  Sec  and  negleot 
to  do  so,  an  action  may  be  supported  by  the  others  ;  and  if  an  account  be 
stated,  and  one  partner  expressly  promise  to  pay  the  balance  appearing  to 
be  due  to  the  other,  the  latter  may  sue  at  law  ;   and  in  the  case  of  a   per- 
sonal chattel,  or  of  trees  severed  from  the  land,  if  one  of  two  or  more  joint- 
tenants  or  tenants  in  common,  by  the  sale  thereof,  convert  the  thing  into 
money,  the  joint  interest  is  determined,  and  each  hath  a  separate  interest 
for  a  sum  certain,  and  may  support  money  had  and  received  against  the 
other  ;  and  one  partner  may  maintain  an  action  for  money  had  and  receiv- 
ed against  the  other  partner  for  money  received  to  the  separate  use   of  the 
former,  and  wrongfully  carried  to  the  partnershij)  account ;  and   a  partner 
may  recover  money  paid   to   his  co-partner  for  the  purpose  of  being  paid 
over,  as  the  plaintiff's  liquidated  share  of  a  debt  to  their  joint  creditor,  if  it 
be  not  so  applied,  and  the  plaintilF  be   obliged   to  pay  such  joint  creditor. 
So  one  of  several  co-sureties  in  a  bond,  who  has  been  obliged  to  pay  more 
than  his  proportion,  may  recover  against  any  one  of  the  others  his  propor- 
tion of  the  money  paid  under  the  bond.     And  unless  there  be  a  partnership, 
one  of  several  parties  interested  in  profits  may  in  general  proceed  at  law 
against  a  person  who  has  received  his  share  :  thus  if  a  sailor  engage  on  a 
whaling  voyage,  and  is  to  receive  a  certain  proportion  of  the  profits  of  the 
voyage  in  lieu  of  wages,  when  the  cargo  is  sold,  ho  may  maintain  an  action 


<illAP.  13]  OF  THE  PARTIES  TO  THE  ACTION.  215 

for  his  wages  against  the  captain,  and  shall  not  be  considered  as  a  partner; 
and  when  the  agreement  between  two  does  not  constitute  a  partnership  as 
between  themselves,  but  only  an  agreement  in  favor  of  one  as  a  compen- 
sation for  trouble  and  credit,  he  may  sue  the  other,  though  as  between  third 
persons  both  might  be  liable  as  partners. 

2ndly.  With  reference  to  the  number  of  the  defendants  ;  and  who  must 
be  joined.  When  there  are  several  parlies,  if  their  contract  were  joint  they 
should  be  made  defendants,  and  if  one  of  them  be  dead,  it  is  more  proper 
to  state  in  the  declaration  that  the  contract  was  made  by  him  as  well  as  by 
the  survivor  :  it  seems,  however,  that  no  advantage  can  be  taken,  thougii 
the  declaration  do  not  notice  the  deceased. 

^  With  respect  to  the  mode  of  taking  advantage  of  the  omissioii  of  a  party 
who  ought  to  be  made  a  co-defendant,  there  is  a  material  distinction  be- 
tween this  case  and  that  of  co-plaintiffs.  We  have  seen  that  if  a  person 
who  ought  to-join  as  plaintiff  be  omitted  and  the  objection  appear  upon  the 
pleadings,  the  defendant  may  demur,  move  in  arrest  of  judgment,  or  bring 
a  writ  of  error ;  or  if  the  objection  do  not  appear  on  the  pleadings,  the 
plaintiff,  except  in  the  case  of  co-executors  or  co-administrators,  will  be 
nonsuited.  But  in  the  case  of  defendants,  if  a  party  be  omitted,  whether 
he  be  sued  upon  a  personal  contract,  or  as  perner  of  the  profits  of  a  real- 
estate,  as  in  debt  for  a  rent-charge,  the  objection  can  only  be  taken  by  ple.i 
in  abatement  verified  by  affidavit,  unless  it  appear  on  the  face  of  the  decla- 
ration, or  some  otlier  pleading  of  the  plaintift",  that  the  party  omitted  is 
still  living,  as  well  as  that  he  jointly  contracted,  in  which  case  the  defen- 
dant may  demur,  or  move  in  arrest  of  judgment,  or  sustain  a  writ  of  error. 
There  is,  however,  this  objection  in  the  case  of  a  joint  contract  to  the  non- 
joinder of  one  or  more  of  the  several  parties  liable,  that  if  judgment  be  ob- 
tained against  one,  in  a  separate  action  against  him  on  such  contract,  the 
plaintiff  cannot  afterwards  proceed  against  the  parties  omitted,  and  conse- 
quently loses  their  security. 

When  the  contract  is  several  as  well  as  joint,  the  plaintiff  is  at  liberty 
to  proceed  against  the  parties  jointly,  or  each  separately,  though  their  in- 
terest be  joint.  But  if  there  be  more  than  two  parties  to  a  joint  and  se- 
veral contract,  as  where  three  obligors  are  jointly  and  severally  bound,  the 
plaintiff  must  either  sue  them  all  jointly,  or  each  of  them  separately,  [1  H. 
&  M.  61.  1  Mun.  40G.  See  also  3  Mun.  1&7,]  though  if  two  only  be  im- 
properly sued,  the  objection  must  be  taken  by  plea  in  abatement ;  and- 
where  parties  are  sued  separately,  the  breach  may  be  assigned  in  both,  and 
a  recovery  and  execution  against  the  body  of  one,  producing  no  actual 
satisfaction,  will  be  no  bar  to  an  action  against  the  other ;  and  when  the 
contract  was  joint  and  several,  and  tlie  debt  or  demand  considerable,  it  was 
formerly  most  advisable  to  proceed  separately ;  for  if  all  the  parties  were 
joined,  and  one  of  them  died  after  judgment  and  before  execution,  the  re- 
medy at  law  against  the  assets  of  the  deceased  was  determined;  [but  it  is 
otherwise  now  in  Virginia.      1  R.  C.  ch.  98,  §  3.] 

Who  nwy  be  joined.  It  has  already  been  observed  that  at  law  as  well 
as  in  equity  the  courts  will  not  take  cognizance  of  distinct  and  separate 
claims  or  liabilities  of  different  persons  in  one  suit,  though  standing  in  the- 
same  relative  situations;  and  therefore  in  an  action  ex  co/i/yac/u  against 
several,  it  must  appear  on  the  face  of  the  pleadings  that  their  contract  was 
joint,  and  that  fact  must  also  be  proved  on  the  trial ;  and  if  loo  ??j any  per- 
sons be  made  defendants,  and  the  objection  appear  on  the  pleadings,  cillier 
of  the  defendants  may  demur,  move  in  arrest  of  judgment,  or  support  a, 
writ  of  error  ;  and  if  the  objection  do  not  appear  upon  the  pleadings,  the 
plaintiff  may  be  nonsuited  upon  the  trial,  if  he  fail  in  proving  a  joint  con- 
tract :  for  though  ui  actions  in  form  ex  delicto,  as  in  trespass  or  case,  one 


216  OF  THE  PARTIES  TO  THE  ACTION.  [  book  3. 

defendant  may  be  found  guilty  and  the  other  acquitted  ;  yet  in  covenant, 
debt,  or  other  action  in  form  ex  contractu,  a  verdict  or  judgment  cannot  in 
general  be  given  in  a  joint  action  against  one  defendant  without  the  other; 
(see  Post.  271 ;)  and  therefore  in  an  action  of  assumpsit  against  three,  two 
only  of  whom  were  liable  to  be  sued,  and  the  party  not  liable,  together  with 
one  of  those  who  was  liable,  suffered  judgment  by  default,  and  the  other  par- 
ty pleaded  the  general  issue,  a  verdict  was  found  for  the  defendants  on  the 
ground  that  the  plaintifT  having  declared  as  upon  a  promise  by  three  defen- 
dants, consequently,  to  entitle  him  to  recover,  he  should  have  proved  a  pro- 
mise) either  express  or  implied,  binding  uj)on  all  the  three  :  1  East,  5"2.  3 
T.  R.  66'2  :  and  where  the  plaintiff  declared  on  a  joint  and  several  promissory 
note  against  all  the  makers  jointly,  and  one  of  them,  by  liis  plea,  admitted 
liis  hand-writing  to  the  note,  but  the  other  defendants  pleaded  non-assump- 
sit, the  plaintiff*  was  non-suited  for  not  proving  the  hand-writing  of  tlie  de- 
fendant, who  by  his  plea  had  so  admitted  it;  1  Esp.  Rep.  135;  and  though 
a  contract  be  proved  to  have  been  in  fact  made  by  all  the  defendants,  yet 
if  in  point  of  law  it  is  not  obligatory  either  on  the  ground  of  infancy,  (Sed 
vide,  2  Ran.  174,  179.  5  John.  Rep.  IGO,)  coverture,  &c.  at  the  time  it 
was  entered  into,  the  plaintiflf  would  be  nonsuited,  and  having  commenced 
his  action  against  too  many  parties,  he  could  not  avoid  the  objection  by  en- 
tering a  JioUe  prosequi  as  to  the  infant  or  feme  covert,  but  must  discontinue 
and  commence  a  fresh  action,  omitting  such  parties,  and  in  which,  should 
the  defendants  plead  the  non-joinder  of  the  infant  or  the  feme  covert  in 
abatement,  the  plaintiff  may  reply  the  infancy  or  coverture.  But  when 
one  of  the  defendants  is  discharged  from  liability  by  matter  subsequent  to 
the  making  of  the  contract,  as  by  his  bankruptcy  and  certificate,  the  failure 
on  the  trial  as  to  him  on  such  ground  does  not  preclude  the  plaintiff  from 
recovering  against  the  other  parties,  and  should  he  plead  his  certificate  a 
nolle  prosequi  as  to  him  may  be  entered  :  and  in  debt  on  a  penal  statute  at 
the  suit  of  a  common  informer,  or  of  the  party  aggrieved,  for  an  offence 
which  may  be  committed  by  several  jointly,  the  plaintiflf  will  succeed  if  he 
prove  either  of  the  defendants  to  be  liable,  for  in  this  case  the  action, 
though  in  form  ex  contractu,  is  founded  upon  a  tort ;  so  against  executors, 
though  the  plaintiff'  may  fail  as  to  one,  on  the  plea  of  plene  administravit, 
he  may  recover  against  the  other,  and  the  defendant  who  is  acquitted  is 
not  even  entitled  to  costs. 

As  the  consequences  of  the  joinder  of  too  many  defendants,  in  an  ac- 
tion in  form  ex  contractu,  are  in  general  so  important,  it  is  advisable  in  cases 
of  doubt  as  to  the  proper  parlies  to  be  made  defendants,  to  frame  the  de- 
claration, when  practicable,  in  case,  in  which  form  of  action,  as  we  shall 
licreafter  see,  tlie  joinder  of  too  many  defendants,  though  for  the  breach 
of  a  contract,  is  in  general  no  ground  of  objection  :  or  if  the  plaintiff  be 
compellable  to  declare  in  an  action  in  form  ex  contractu,  it  is  most  advisa- 
ble, in  such  case  of  doubt,  to  proceed  only  against  those  defendants  who 
are  certainly  liable,  in  which  case  we  have  seen  the  non-joinder  can  only 
be  taken  advantage  of  by  a  plea  in  abatei^icnt. 

3dly.  In  case  of  change  of  credit,  and  of  covenants  running  with  land, 
&,c.  In  general  in  the  case  of  a  mere  personal  contract,  the  action  for  the 
breach  of  it  cannot  be  brought  against  a  person  to  whom  the  contracting 
]>arty  has  assigned  his  interest,  and  the  original  party  alone  can  be  sued: 
thus  if  one  demise  cattle  or  goods,  and  the  lessee  covenant  for  himself  and 
his  assigns  at  the  end  of  the  term  to  deliver  such  cattle  or  goods,  and  the 
lessee  assign  the  cattle.  Sec.  this  covenant  will  not  bind  the  assignee,  for  it 
is  merely  a  thing  in  action  in  the  personalty,  and  wants  such  privity  as  ex- 
ists between  the  lessor  and  lessee  of  real  property  in  respect  of  the  rever- 
sion ;  and  if  two  partners  dissolve  their  partnership,  and  one  of  them  cove- 


CHAP.  13]  OP  THE  PARTIES  TO  THE  ACTIOX.  217 

nant  with  the  other  that  he  will  pay  all  the  debts,  a  creditor  mubt  neverthe- 
less sue  both.  There  may  however  in  some  cases  be  a  change  of  credit,  by 
agreement  between  the  parties,  so  as  to  transfer  the  liability  Irom  the  origi- 
nal contracting  party  to  another,  or  to  one  only  of  the  original  parties  ;  thus 
in  the  case  of  a  tenancy  from  year  to  year,  if  the  landlord  accept  another 
person  as  tenant  in  the  the  room  of  the  former  tenant,  without  any  surren- 
der in  writing,  such  acceptance  may  be  a  dispensation  of  any  notice  to  quit, 
and  the  original  tenant  may  be  discharged ;  and  where  two  ])artners  gave 
a  joint  bill  of  exchange  for  a  partnership  demand,  and  when  the  bill  be- 
came due  the  holder  took  the  separate  bill  of  one,  it  is  reported  to  have  been 
decided  that  the  other  was  thereby  discharged.  So  if  one  take  the  securi- 
ty of  the  agent  of  the  principal,  with  whom  he  dealt,  unknown  to  the  prin- 
cipal, and  give  the  agent  a  receipt  as  for  the  money  due  from  the  principal, 
in  consequence  of  which  the  principal  deals  differently  with  his  agent  on 
the  faith  of  such  receipt,  the  principal  is  discharged,  although  the  security 
fail ;  though  if  the  principal  were  not  prejudiced  he  would  not  be  discharged. 
But  where  one  of  three  joint  covenantors  gave  a  bill  of  exchange  as  a  col- 
lateral security,  not  accepted  in  satisfaction  of  the  debt,  the  judgment  re- 
covered on  the  bill  was  decided  to  be  no  bar  to  an  action  of  covenant  against 
the  three.  The  consignor  of  goods  may  be  primarily  liable  for  the  freight, 
but  the  consignee  or  purchaser,  if  he  accept  the  goods  in  pursuance  of  the 
usual  bill  of  lading,  may  be  sued  for  the  same,  unless  it  be  known  to  the 
master  of  the  ship  that  he  acted  only  as  agent  for  the  consignor;  and  the 
indorsee  of  the  bill  of  lading  requiring  the  delivery  to  order  on  payment  of 
freight  is  liable,  though  he  only  acted  as  broker  for  the  consignee.  But 
where  there  is  a  charter-party  under  seal  providing  for  payment  of  freight 
by  the  freighter,  and  the  goods  are  received  under  an  indorsed  bill  of  lad- 
ing, by  which  they  are  deliverable  to  the  freighter  or  order,  he  or  they  pay- 
ing freight  as  per  charter-party,  there  is  no  implied  contract  on  the  part  of 
the  indorsee  of  the  bill  of  lading  to  pay  freight  to  the  owner  of  the  ship. 

Upon  a  covenant  running  with  the  Zcjirf  which  must  concern  real  proper- 
ty or  the  estate  therein,  the  assignee  of  the  lessee  is  liable  to  an  action  for 
a  breach  of  covenant  after  the  assignment  of  the  estate  to  him,  and  though 
he  have  not  taken  possession  ;  but  his  liability  ceases  when  he  assigns  his 
interest,  though  even  purposely  to  an  insolvent  person.  And  if  the  cove- 
nant be  merely  collateral  and  personal,  an  assignee  is  not  in  any  case  liable, 
and  the  lessee  alone  can  be  sued. 

When  there  is  an  express  covenant  in  a  lease  to  pay  rent  or  perform  anj^ 
other  act,  the  original  lessee  and  his  personal  representatives  having  as- 
sets are  liable  to  an  action  of  covenant  during  the  lease,  notwithstanding, 
before  the  breach  complained  of,  the  interest  in  the  lease  may  have  been 
assigned,  and  though  the  lessee  may  have  become  bankrupt,  or  an  insol- 
vent debtor,  or  the  lessor  or  the  assignee  of  the  reversion  may  have  accept- 
ed rent  of  the  assignee.  But  an  action  cannot  be  supported  against  those 
parties  for  a  breach  of  covenant  implied  by  law,  committee  after  acceptance 
of  rent  from  the  assignee  ;  nor  can  the  lessor,  after  such  acceptance  of  the 
assignee,  maintain  an  action  of  debt  against  the  lessee  or  his  representa- 
tives, even  upon  an  express  covenant. 

An  under-lessee  who  has  not  the  whole  of  the  lessee's  interest  assigned  to 
him,  cannot  be  sued  by  the  original  lessor  for  any  breach  of  covenant  con- 
tained in  the  original  lease,  though  for  voluntary  and  not  mere  permissive 
•waste  he  would  be  liable  to  an  action  on  the  case. 

In  the  case  of  a.  joint  contract,  if  one  of  the  parties  die,  his  executor  of 

administrator  is  at  law  discharged  from  liability,  and  the  survivor  alone  can 

be  sued  ;  and  if  the  executor  be  sued,  he  may  either  plead  the  survivorship 

in  bar,  or  give  it  in  evidence  under  the  general  issue ;  but  in  equity  tha 

VOL.  2—28 


218  OF  THE  PARTIES  TO  THE  ACTION.  [book  3. 

executor  of  the  deceased  party  is  liable,  unless  in  some  instances  of  a  sure- 
ty :  and  if  the  contract  were  several,  or  joint  and  several,  the  executor  of 
the  deceased  may  be  sued  at  law  in  a  separate  action  ;  but  he  cannot  be 
sued  jointly  with  the  survivor,  because  one  is  to  be  charged  de  bonis  testa- 
toris,  and  the  other  de  bonis  propriis.  It  is  usual  to  declare,  at  least  in 
some  counts,  against  the  survivor  as  such,  noticing  the  death  of  his  co-obli- 
gee or  co-partner;  but  it  should  seem  that  the  survivor  may  be  declared 
against  without  noticing  the  deceased,  and  in  an  action  against  such  survi- 
vor a  debt  may  be  inckided,  though  it  became  due  from  him  since  the  death 
of  his  partner;  and  when  the  survivor  is  sued  for  his  own  separate  debt,  he 
may  set  off  a  demand  due  to  him  as  surviving  j)artner. 

5thly.  In  the  case  of  executors  or  administrators,  heirs,  and  devisees* 
When  the  contracting  party  is  dead,  his  executor  or  adminislralor,  or  in  case- 
of  a  joint  contract,  the  executor  or  administrator  of  the  survivor,  is  the  par- 
ty to  be  made  defendant ;  and  an^  executor  of  a  lessee  may  be  sued  as 
such  for  a  breach  committed  by  the  assignee  of  a  lease  since  the  death  ; 
and  covenant  lies  against  executors  in  every  case,  though  they  be  not  nam- 
ed ;  unless  it  be  a  covenant  to  be  performed  by  the  testator  in  person,  and 
which  consequently  the  executor  cannot  perform,  or  the  breach  of  some 
personal  contract,  where  the  remedy  dies  with  the  person,  as  a  breach  of 
])romise  to  marry.  If  a  person  intermeddle  as  executor  with  the  estate  of 
the  deceased,  he  may  in  general  be  sued  as  executor  de  son  tort,  although 
there  be  a  lawful  executor,  and  in  such  case  he  is  uniformly  declared  against 
as  if  he  were  a  lawful  executor,  though  the  party  died  intestate,  and  he 
may  be  joined  in  the  same  action  with  the  lawful  executor,  though  not  with 
the  lawful  administrator:  and  if  the  husband  of  an  executrix  after  her  death 
detain  part  of  the  goods  of  the  testator,  he  may  be  sued  as  executor  de  son 
tort ;  so  if  a  stranger  take  away  the  goods  of  the  deceased,  and  there  be 
no  lawful  executor,  he  also  is  liable  to  be  sued  as  executor  de  son  tort, 
though  he  claim  them  as  his  own;  but  if  there  be  a  lawful  executor  or  ad- 
ministrator, the  stranger  cannot  be  sued  as  executor  de  son  tort.  And  no 
person  can  ever  be  sued  as  administrator  de  son  tort,  nor  can  an  executor 
ile  son  tort  of  an  executor  de  son  tort,  be  sued  as  such  at  law. 

If  there  be  several  executors  they  should  all  be  sued,  in  case  they  have 
all  administered  and  have  assets,  or  the  defendant  may  plead  the  non-join- 
der in  abatement ;  but  if  one  have  not  administered,  or  if  no  assets  have 
come  to  his  hand,  he  may  be  omitted.  The  plaintilf,  however,  when  he 
sues  all,  will  succeed  if  he  recover  against  any  one  of  the  defendants,  and 
the  defendant  who  obtains  a  verdict  will  not  be  entitled  to  his  costs  ;  and 
as  it  may  be  advisable  to  take  judgment  of  assets  quando,  &c.  against  such 
defendant,  should  he  plead  plcnc  administravit,  it  is  in  general  advisable  to 
join  all  the  defendants  who  may  be  named  as  executors  or  administrators 
in  the  will  or  letters  of  administration.  If  a  married  woman  be  executrix, 
fJie  husband  must  be  jointul  in  the  action  ;  and  an  infant  sole  executor  can- 
not be  sued  till  he  be  of  full  age,  nor  can  an  executor  be  sued  as  such  for 
money  lent  to  him,  or  upon  a  penal  statute. 

II  tin;  contract  were  under  seal  or  of  record,  the  heir  of  the  party  con- 
tracting is  lialjlc  to  an  action  for  the  breach  of  it,  when  expressly  named  in 
the  contract,  provided  he  have  Ic^-al  assets  by  descent  irom  the  obligor. 
And  if  there  be  a  devisee,  (otherwise  than  for  the  payment  of  debts,  or  in 
pursuance  of  a  marriatre  contract  entered  into  before  marriage,)  he  may  be 
sued  in  an  action  of  debt,  for  the  breach  of  a  contract  of  the  testator  under 
seal  or  of  record,  but  the  heir  must  be  joined  in  the  action ;  and  an  action 
of  covenant  cannot  in  any  case  be  supported  against  a  devisee,  for  a  breach 
of  contract  in  the  time  of  the  testator ;  and  though  the  devisee  bo  an  infant, 
he  cannot  pray  the  j)arol  to  demur  by  reason  of  his  nonage,  such  privilege 


CHAP.  13.]  OF  THE  PARTIES  TO  THE  ACTION.  219 

being  confined  to  an  infant  heir.  An  heir  or  devisee  having  a  legal  estate, 
are  liable  to  an  action  for  the  breach  of  a  covenant  running  with  the  land 
committed  in  their  own  time.  If  there  be  several  heirs,  as  in  the  case  of 
gavel-kind,  or  of  parceners,  they  should  all  be  joined,  or  the  defendant  may 
plead  in  abatement;  and  a  devisee  must  be  sued  with  the  heir  jointly,  at 
law  as  well  as  in  equity ;  though  an  executor  cannot  in  any  case  be  sued 
jointly  with  the  heir. 

Gthly.  In  case  of  marriage.  In  general  a  feme  covert  cannot  be  sued 
alone  at  law  ;  and  when  a  feme  sole  who  has  entered  into  a  contract  mar- 
ries, the  husband  and  wife  must  in  general  be  jointly  sued,  though  the  hus- 
band state  an  account,  and  expressly  promise  to  pay  the  debt  or  perform  the 
contract.  But  if  he  in  respect  of  some  new  considerations,  as  for  fori)car- 
ance,  &c.  expressly  undertake  in  writing  to  pay  the  debt,  or  perform  the 
contract  of  the  feme,  he  may  be  sued  alone  on  such  undertaking.  And 
when  rent  becomes  due,  or  there  is  a  breach  of  covenant  during  coverture 
upon  a  lease  to  the  feme  whilst  sole,  the  action  may  be  against  both,  or 
against  the  husband  alone ;  but  the  feme  can  in  no  case  be  sued  upon  a 
mere  personal  contract  made  during  coverture,  though  after  the  death  of  the 
husband  she  expressly  promise  to  perform  it;  but  covenant  on  the  warran- 
ty in  a  fine,  or  on  a  covenant  running  with  the  land  of  the  wife  demised  by 
her  during  the  coverture,  may  be  supported  against  her;  and  it  is  said  that 
upon  a  lease  to  the  husband  and  wife  for  her  benefit,  the  action  may  be 
against  both.  And  if  the  husband  be  civiliter  morluus,  [as  perhaps  when 
confined  as  a  convict  in  the  penitentiary,]  or  even  transported  for  a  term  of 
years,  the  wife  may  be  sued  alone  upon  a  contract  made  by  her  during  that 
time.  In  the  case  of  a  feme  covert  executrix  or  administratrix,  she  must  be 
joined  with  the  husband  in  an  action  on  any  personal  contract  of  the  de- 
ceased ;  but  for  rent  due  during  the  coverture  on  a  lease  which  the  wife  has 
as  executrix,  the  husband  may  be  sued  alone. 

When  the  husband  survives,  he  is  not  liable  to  be  sued  in  that  character 
for  any  contract  of  the  ferae  made  before  the  coverture,  unless  judgment 
had  been  obtained  against  him  and  his  wife  before  her  death,  and  if  she  die 
before  judgment  the  suit  will  abate  ;  but  if  the  husband  neglect  during  her 
life  to  reduce  her  choses  in  action  into  possession,  the  creditor  may  sue  her 
administrator  for  debts  due  before  her  marriage,  and  for  rent  incurred  dur- 
ing the  coverture,  or  upon  a  judgment  obtained  against  husband  and  wife; 
in  case  of  her  death  he  may  be  sued  alone. 

In  case  the  wife  survive,  she  may  be  sued  upon  all  her  unsatisfied  con- 
tracts made  before  coverture;  but  the  bankruptcy  and  certificate  of  the 
husband  will  discharge  her  from  all  liability  to  satisfy  debts  which  could 
have  been  proved  under  his  commission  ;  and  if  the  husband  and  wife  be 
sued  jointly,  his  bankruptcy  may  be  pleaded  in  bar. 

If  the  husband  be  sued  alone  upon  the  contract  of  his  wife  before  cover- 
ture, and  the  objection  appear  upon  the  face  of  the  declaration,  the  defen- 
dant may  demur,  move  in  arrest  of  judgment,  or  bring  a  writ  of  error  ;  and 
if  the  contract  were  mis-described  as  being  that  of  the  husband,  the  plain- 
tiff would  be  non-suited.  But  if  the  wife  be  sued  alone  upon  her  contract 
before  marriage,  she  must  plead  her  coverture  in  abatement,  or  bring  error 
coram  nobis,  and  coverture  in  such  case  cannot  be  pleaded  in  bar  or  given 
in  evidence  upon  the  trial  as  the  ground  of  nonsuit;  and  if  she  marry  pend- 
ing an  action  against  her,  it  will  not  abate,  but  the  plaintiff  may  proceed  to 
execution  without  noticing  the  husband.  But  if  a  feme  covert  be  sued  upon 
her  supposed  contract  made  during  coverture,  she  may  in  general  plead  the 
coverture  in  bar,  or  give  it  in  evidence  under  the  general  issue,  even  in  the 
case  of  a  bond.  And  if  the  husband  and  wife  be  improperly  sued  jointly 
on  a  contract  after  marriage,  the  action  will  fail  as  to  both. 


220  OF  THE  PARTIES  TO  THE  ACTION.  [  BOOK  3. 

II.  In  actions  inform  ex  delicto.  The  rules  which  direct  who  are  to  be 
the  parties  to  an  action  in  form  ex  delicto,  whether  as  plaintiffs  or  defen- 
dants, may,  as  in  actions  in  form  ex  contractu,  be  considered  with  reference, 
1st,  to  the  interest  of  the  plaintiff  in  the  matter  affected,  and  the  liability 
of  the  defendant ;  2ndly,  the  number  of  the  parties,  and  who  must  or  may 
join  or  be  joined  ;  3dly,  where  there  has  been  an  assignment  of  interest, 
&c. ;  4thly,  in  the  case  of  survivorship ;  othly,  where  the  party  injured,  cmt 
committing  the  injury,  is  dead ;  Cthly,  in  the  case  of  bankruptcy  or  insol- 
vency; and  7thly,  in  that  of  marriage. 

Plaintiffs.  1st.  With  reference  to  the  iw/eres^  of  the  plaintiffs.  The  ac- 
tion for  a  tort  must  in  general  be  brought  in  the  name  of  the  party  whose 
legal  right  has  been  affected  ;  and  a  cestui  que  trust  or  other  person  having 
only  an  equitable  interest  cannot  in  general  sue  in  the  courts  of  common 
law,  against  his  trustee,  or  even  a  third  person,  unless  in  cases  where  the 
action  is  against  a  wrong-doer,  and  for  an  injury  to  the  actual  possession 
of  the  cestui  que  trust.  Many  of  the  rules  and  instances  which  have  been 
stated  in  respect  to  the  person  to  be  made  the  plaintiff  in  actions  in  form 
ex  contractu  here  also  govern  and  are  applicable.  Actions  in  form  ex  delicto 
are  for  injuries  to  the  absolute  or  relative  rights  of  persons,  or  to  personal  or 
real  property. 

The  action  for  an  injury  to  the  absolute  rights  of  persons,  as  for  assaults, 
batteries,  wounding,  injuries  to  the  health,  liberty  and  reputation,  can  only 
be  brought  in  the  name  of  the  party  immediately  injured,  and  if  he  die  the 
remedy  determines.  With  respect  to  injuries  to  the  relative  rights  of  per- 
sons, the  husband  may  sue  alone  for  injuries  which  have  occasioned  loss  or 
deprivation  of  the  society  of  his  wife,  or  her  assistance  in  his  domestic  af- 
fairs, such  as  criminal  conversation,  or  violent  battery  occasioning  an  ill- 
ness of  the  wife  for  some  time  or  expense  in  her  cure  ;  and  in  such  action 
the  husband  may  include  a  demand  in  trespass  or  case  for  an  injury  to  his 
own  person,  or  to  his  personal  or  real  property  ;  but  if  the  battery  or  other 
act  were  not  sufficiently  injurious  to  prove  the  allegation  per  quod  consortium 
amisit,  or  that  the  husband  was  put  to  expense,  he  cannot  sue  alone,  but 
the  action  must  be  in  the  name  of  the  husband  and  wife  for  her  personal 
suffering,  and  in  which  case  no  demand  for  an  injury  to  the  husband,  either 
by  loss  of  the  society  of  his  wife,  or  expense  in  her  cure,  injury  to  her 
wearing  apparel,  or  other  cause  of  action  in  which  the  husband  alone  is  in 
point  of  law  interested,  can  in  strictness  be  included.  In  the  case  of  mas- 
ter and  servant,  the  master  may  sue  alone  for  the  battery  or  debauching  of 
his  servant,  though  no  relation,  when  there  is  evidence  to  prove  a  conse- 
quent loss  of  service  ;  but  if  there  be  no  evidence  of  such  loss  an  action 
cannot  be  supported  in  the  name  of  the  master,  but  the  servant  must  sue 
alone  for  the  battery  ;  or  where  there  was  a  promise  of  marriage,  for  the 
breach  of  such  promise.  A  parent  may  perhaps  sue  in  that  character  for 
the  taking  away  of  his  child,  but  he  cannot  support  an  action  for  debauch- 
ing his  daughter,  or  beating  his  child,  unless  there  be  evidence  to  support 
the  allegation  ;)er^»0(i  servitium  amisit.  In  cases  of  the  battery  of  the  wife, 
the  daughter,  or  the  servant,  if  there  be  any  evidence  sufficient  to  support 
an  action  in  the  name  of  the  husband,  parent,  or  master,  it  is  frequently 
most  advisable  to  proceed  accordingly,  because  in  such  action  if  the  plain- 
tiff recover  less  than  40s.  damages  he  will  be  entitled  to  full  costs.  The 
wife,  the  child,  or  the  servant,  having  no  legal  interest  in  the  property  of  the 
husband,  the  parent,  or  master,  cannot  support  an  action  for  an  injury  to 
them. 

The  absolute  or  general  owner  of  personal  property  having  the  right  of 
immediate  possession,  may  in  general  support  an  action  for  any  injury 
thereto,  though  he  have  never  had  the  actual  ppsscssion,  it  being  a  rule  of 


CHAP.  13.]  OF  THE  PARTIES  TO  THE  ACTION.  221 

law  that  the  property  in  personal  chattels  draws  to  it  the  possession.  So, 
though  at  the  time  when  the  injury  was  committed,  the  goods  were  in  the 
actual  possession  of  a  servant,  carrier,  or  other  bailee,  yet  if  the  general 
owner  had  the  right  of  immediate  possession,  the  action  may  be  in  his  name, 
or  it  may  be  in  the  name  of  the  person  having  actual  possession,  but  only 
a  special  property,  as  by  a  factor,  a  carrier,  a  pawnbroker,  or  an  agister  of 
cattle,  or  against  a  stranger,  by  any  person  having  the  actual  possession  at 
the  time  of  the  injury  ;  but  a  mere  servant  having  only  the  custody  of  goods, 
and  not  responsible  over,  cannot  in  general  sue.  And  though  in  the  above 
instances  the  action  may  be  brought  by  the  general  or  special  owners  of 
goods  against  a  stranger,  yet  both  actions  cannot  be  supported  at  the  same 
time,  and  a  judgment  obtained  by  one  is  a  bar  to  an  action  by  the  other. 
And  when  the  general  owner  has  not  the  right  of  immediate  possession,  as 
where  he  has  demised  goods  for  a  term,  he  cannot  maintain  trespass  or  tro- 
ver even  against  a  stranger ;  though  if  the  injury  were  sufficient  to  affect 
his  reversionary  interest,  he  may  support  a  special  action  on  the  case  ;  and 
a  recovery  in  an  action  by  the  party  having  a  possessory  interest,  would  be 
no  bar  to  an  action  for  an  injury  to  the  reversionary  interest.  A  landlord 
has  in  legal  consideration  the  possession  of  timber,  though  not  excepted 
in  the  lease,  so  that  though  it  be  cut  down  pending  the  term,  if  it  be  car- 
ried away,  he  may  maintain  trespass  or  trover,  the  interest  of  the  lessee  in 
the  trees  determining  instantly  they  are  cut  down. 

The  person  in  possession  of  real  property  corporeal,  whether  lawfully  or 
not,  may  sue  for  an  injury  committed  by  a  stranger,  or  by  any  person  who 
cannot  establish  a  better  title ;  and  in  trespass  to  land,  the  person  actually 
in  possession,  though  a  cestui  que  trust,  should  be  the  plaintiff  and  not  the 
trustee ;  though  in  ejectment  it  is  otherwise,  and  the  demise  must  be  in  the 
name  of  the  party  legally  entitled  to  the  possession,  although  the  beneficial 
interest  may  be  in  another.  In  the  case  of  real  property,  there  is  not  that 
constructive  possession  as  in  that  of  personalty,  and  the  party  entitled  to 
possession  cannot  maintain  trespass,  unless  he  has  had  actual  possession, 
though  he  have  the  freehold  in  law.  A  person  having  the  immediate  rever- 
sion or  remainder  in  fee  or  in  tail  or  for  a  less  estate,  may  support  an  ac- 
tion on  the  case  for  waste,  &c.  injurious  to  his  estate  ;  but  he  cannot  sue 
in  trespass  when  the  possession  is  lawfully  in  his  tenant  or  other  person,  but 
must  sue  in  case.  The  tenant  may  support  trespass  against  a  stranger  for 
an  injury  to  his  possession,  and  the  immediate  reversioner  may,  at  the  same 
time,  support  an  action  on  the  case,  if  the  injury  were  sufficient  to  preju- 
dice his  interest;  and  a  recovery  by  one  will  be  no  bar  to  an  action  by  the 
other.  When  trees  are  excepted  in  a  lease  the  lessee  has  no  interest  there- 
in, and  cannot  sue  even  a  stranger  for  cutting  them  down,  though  he  might 
for  the  trespass  to  the  land  ;  and  in  such  case  the  lessor  may  support  tres- 
pass against  the  lessee  or  a  stranger,  if  he  either  fell  or  damage  them  ;  but 
if  there  be  no  exception  of  the  trees  in  the  lease,  the  lessee  has  a  particular 
interest  therein,  and  may  support  trespass  against  the  lessor  or  a  stranger 
for  an  injury  to  them  during  the  term  :  but  the  interest  in  the  body  of  the 
trees  remains  in  the  lessor  as  part  of  his  inheritance,  and  he  may  support 
an  action  on  the  case  against  a  lessee  or  a  stranger  for  any  injury  thereto, 
or  even  trover,  if  they  be  cut  down  and  carried  away.  Most  of  these  rules 
prevail  also  in  the  case  of  an  injury  to  real  property  incorporeal,  and  if  there 
be  any  injury  to  such  right,  an  action  may  be  supported,  however  small  the 
damage:  and  therefore  a  commoner  may  maintain  an  action  on  tlie  case 
for  an  injury  done  to  the  common,  though  his  proportion  of  the  damage  be 
found  to  amount  only  to  a  farthing. 

2dly.  With  reference  to  the  number  of  the  plaintiffs.  When  two  or  more 
persons  are  jointly  entitled,  or  h9,ve  a  joint  legal  interest  in  the  property  af- 


222  OF  THE  PARTIES   TO  THE  ACTION.  [  book  3. 

fectcd,  they  must  in  general  join  in  the  action,  or  the  defendant  may  plead 
in  abatement;  and  though  the  interest  be  several,  yet  if  the  wrong  com- 
plained of  be  an  entire  joint  damage,  the  parties  may  join  in  the  action  ; 
but  as  the  courts  will  not  in  one  suit  take  cognizance  of  distinct  and  sepa- 
rate claims  of  different  persons,  therefore  where  the  cause  of  action  as  well 
as  the  interest  is  several,  each  party  injured  must  sue  separately. 

Therefore  for  injuries  to  the  person,  several  parties  cannot  in  general  sue 
jointly,  as  for  slander,  battery,  or  false  imprisonment  of  both,  and  each  must 
bring  a  separate  action  ;  but  two  partners  in  trade  may  join  in  an  action 
for  words  spoken  of  them  in  the  way  of  their  trade  ;  and  joint-tenants  or 
coparceners  may  join  in  action  for  slander  of  their  title  to  the  estate;  and 
husband  and  wife  may  sue  jointly  for  a  malicious  prosecution  and  impri- 
sonment of  both,  or  the  husband  may  sue  alone  ;  and  it  appears  to  be  a 
general  rule  that  two  persons  may  join  or  sever,  though  their  interest  be  se- 
veral, if  the  injury  complained  of  were  a  joint  damage  to  both. 

In  actions  for  injuries  to  persojial  property,  joint-tenants  and  tenants  in 
common  must  join,  or  the  defendant  may  plead  in  abatement :  but  parties 
Jiaving  several  and  distinct  interests,  cannot  in  general  join  ;  as  if  the  goods 
of  A  and  B,  the  separate  property  of  each,  be  unlawfully  distrained,  they 
cannot  join  in  repleven  ;  but  where  goods  are  bailed  to  two,  and  only  one 
has  the  possession  in  fact,  and  a  stranger  carries  them  away,  both  may 
have  detinue  or  trespass,  or  the  one  who  had  actual  possession  may  sue 
alone. 

In  actions  for  injuries  to  real  property,  joint-tenants  and  parceners  must 
join  in  real  as  well  as  personal  actions,  or  the  non-joinder  may  be  pleaded 
jn  abatement ;  and  if  one  of  several  joint-tenants  die  pending  a  real  action, 
;it  will  abate,  as  the  survivor  is  entitled  to  a  different  estate  ;  but  it  is  other- 
'V/ise  in  personal  and  mixed  actions.  Tenants  in  common  must  in  general 
-sever  in  real  actions,  and  in  ejectment  a  joint  demise  would  be  improper; 
:but  in  personal  actions,  as  for  a  trespass  or  nuisance  to  their  land,  they  may 
join,  because  in  these  actions,  though  their  estates  are  several,  yet  the  da- 
images  survive  to  all,  and  it  would  be  unreasonable  when  the  damage  is  thus 
entire  to  bring  several  actions  for  a  single  trespass  :  a  tenant  in  common 
may,  however,  in  general,  sue  separately,  as  in  ejectment  for  his  undivided 
share,  or  in  trespass  for  the  mesne  profits,  or  in  debt  for  double  value  against 
a  person  who  has  held  over  after  the  expiration  of  his  tenancy. 

In  actions  in  form  ex  delicto,  and  which  are  not  for  the  breach  of  a  con- 
tract, if  a  party  who  ought  to  join  be  omitted,  the  objection  can  only  be 
taken  by  plea  in  abatement,  or  by  way  of  apportionment  of  the  damages 
on  the  trial  ;  and  the  defendant  cannot,  as  in  actions  in  form  ex  contractu, 
give  in  evidence  the  non-joinder,  as  the  ground  of  nonsuit  on  the  plea  of 
the  general  issue,  or  demur,  or  move  in  arrest  of  judgment,  or  support  a 
writ  of  error,  though  it  appear  upon  the  face  of  the  declaration,  or  other 
pleading  of  the  plaintiff,  that  there  is  another  party  who  ought  to  have  join- 
ed :  and  if  one  of  several  part-owners  of  a  chattel  sue  alone  for  a  tort,  and 
the  defendant  do  not  plead  in  abatement,  the  other  part-owners  may  after- 
wards sue  alone  for  the  injury  to  their  undivided  shares,  and  the  defendant 
cannot  plead  in  abatement  of  such  action. 

If,  however,  too  many  persons  be  made  co-plaintiffs,  the  objection,  if  it 
apj)ear  on  the  record,  may  be  taken  advantage  of  either  by  demurrer,  in  ar- 
rest of  judgtnent,  or  by  writ  of  error  ;  or  if  the  objection  do  not  appear  on 
the  face  of  the  pleadings,  it  would  be  a  ground  of  nonsuit  on  the  trial, 
though  if  two  tenants  in  common  join  in  detinue  of  charters,  it  is  said  if 
one  be  nonsuit  the  other  shall  recover. 

3dly.  When  the  interest  in  the  property  has  been  assigned.  Injuries  ex 
delicto  arc  not  assignable  by  act  of  the  party,  nor  is  the  right  to  sue  for 


CHAP.  13.]  OF  THE  PARTIES  TO  THE  ACTION.  223 

them  in  general  transmitted  by  law  to  his  rei)roscntativcs  ;  and  tliorefore  an 
heir  cannot  maintain  an  action  for  waste  conunilled  in  the  lime  of  his  an- 
cestor, nor  the  grantee  of  a  reversion  for  waste  committed  before  tlie  grant. 
Yet  a  devisee  may  support  an  action  for  the  CGntimianre  of  a  nuisance 
erected  in  the  lifetime  of  the  testator,  for  every  coniinaance  gives  a  new 
cause  of  action. 

4thly.  When  one  of  several  parties  interested  is  dead.  When  one  or 
more  of  several  parties  interested  in  the  ])roperty  at  the  time  the  i-ijury 
was  committed  is  dead,  the  action  shouhl  he  in  the  name  of  the  survivor, 
and  the  executor  or  administrator  of  the  deceased  cannot  be  joined,  nor 
can  he  sue  separately ;  and  therefore  to  an  action  of  trover  brouglit  l)y  the 
survivor  of  three  partners  in  trade,  it  cannot  be  objected  that  the  two  do- 
ceased  partners  and  the  plaintiff  were  joint  merchants,  and  consecpienlly 
that  in  respect  of  the  lex  mercatoria  the  right  of  survivorsiiip  did  not  exist, 
for  the  legal  right  of  action  survives,  though  the  beneficial  interest  may  not. 
[A  variety  of  provisions  are  to  be  found  in  our  statutes  to  prevent  the  abate- 
ment of  suits.  See  1  R.  C.  ch.  128,  §  38.  Sess.  acts,  1828,  ch.  20.  18;M, 
eh.  8,  §  5.     1825,  ch.  15,  §  2.] 

5thly.  In  case  of  the  death  of  the  party  injured.  We  have  seen  that  the 
right  of  action  for  the  breach  of  a  contract,  upon  the  death  of  either  party, 
in  general  survives  to  and  against  the  executor  or  administrator  of  each  ; 
but  in  the  case  of  torts,  when  the  action  must  be  in  form  ex  delicto,  for  the 
recovery  of  damages,  and  the  j)lea  thereto  not  guilty,  the  rule  at  common 
law  was  otherwise,  it  being  a  maxim  that  actio  personalis  moritur  cum  per- 
sona, and  we  shall  find  that  the  statute  4  Edw.  III.  c.  7,  (1  II.  C.  ch.  J04, 
§  64,")  has  altered  this  rule  only  in  its  relation  io  personal  property,  and  in 
favor  of  the  personal  representatives  of  the  party  injured  ;  but  if  the  action 
can  be  framed  in  form  ex  contractu,  this  rule  does  not  apply.  We  will  con- 
sider the  rule  as  it  now  affects  actions  for  injuries  to  the  person,  and  to 
personal  and  real  property. 

In  the  case  of  injuries  to  the  person,  whether  by  assault,  battery,  false 
imprisonment,  slander,  or  otherwise,  if  either  the  party  who  received  or 
committed  the  injury  die,  no  action  can  be  supported  either  by  or  against 
the  executors  or  other  personal  representatives,  for  the  statute  4  Edw.  III. 
c.  7,  (1  R.  C.  ch.  104,  §  64,)  has  made  no  alteration  in  the  common  law  ia 
this  respect. 

At  common  law  in  case  of  injuries  to  personal  property,  if  either  party 
died,  in  general  no  action  could  be  supported,  either  by  or  against  the  per- 
sonal representatives  of  the  parties,  where  the  action  must  have  been  in 
form  ex  delicto,  and  the  plea  not  guilty  ;  but  if  any  contract  can  be  implied, 
as  if  the  wrong-doer  converted  the  property  into  money,  or  if  the  goods  re- 
main in  specie  in  the  hands  of  the  executor  of  the  wrong-doer,  at  common 
law  assumpsit  for  money  had  and  received  may  be  supported  by  or  against 
the  executors  in  the  former  case,  and  trover  against  the  executors  in  the 
latter.  [And  now  by  I  R.  C.  ch.  104,  §  64,  trespass  de  bonis  asportatis 
may  be  maintained  by  or  against  executors  or  administrators,  though  the 
wrong  was  committed  in  the  testator's  lifetime.]  It  has  been  well  observed 
that  the  taking  of  goods  and  chattels  was  put  in  the  statute  merely  as  an 
instance  and  not  as  restrictive  to  such  injuries  only,  and  that  the  term  tres- 
pass must  with  reference  to  the  language  of  the  times,  when  the  statute  was 
passed,  signify  a  wrong  generally  ;  and  accordingly  the  statute  has  been 
construed  to  extend  to  every  description  of  injury  to  personal  property  by 
which  it  has  been  rendered  less  beneficial  to  the  executor,  whatever  the  form 
of  action  may  be  ;  so  that  an  executor  may  support  trespass  or  trover,  case 
for  a  false  return  to  final  process,  and  case  or  debt  for  an  escape,  &c.  on 
final  process ;  and  though  it  has  be(in  doubted  whether  an  executor  can 


224  OF  THE  PARTIES  TO  THE  ACTION.  [  ROOK  3. 

sue  for  an  escape  on  mesne  process  in  the  lifetime  of  his  testator,  on  prin- 
ciple it  appears  that  he  may  ;  and  he  may  support  debt  for  not  setting  out 
tithes,  or  debt  against  an  executor,  suggesting  a  devastavit  in  the  lifetime 
of  the  plaintiff's  testator,  or  case  against  the  sheriff  for  removing  goods 
taken  in  execution,  without  paying  the  testator  a  year's  rent ;  or  an  action 
of  ejectment  or  quare  impedit,  for  the  disturbance  of  the  testator. 

But  with  respect  to  injuries  to  real  property,  if  either  party  die,  no  action 
in  form  ex  delicto  can  be  supported  either  by  or  against  their  personal  re- 
presentatives ;  and  though  the  statute  might  bear  a  more  liberal  construc- 
tion, the  decisions  have  confined  its  operation  to  injuries  to  personal  pro- 
perty, and  therefore  an  executor  cannot  support  an  action  of  trespass  quare 
clausum  fregit,  or  merely  for  cutting  down  trees,  or  other  waste  in  the  life- 
time of  his  testator. 

7th]y.  In  case  of  marriage.  The  wife  having  no  legal  interest  in  the 
person  or  property  of  her  husband,  cannot  in  general  join  with  him  in  any 
action  for  an  injury  thereto  ;  except  in  an  action  for  a  joint  malicious  pro- 
secution of  both,  in  which  they  may  join  in  respect  of  the  injury  to  both, 
6r  the  husband  may  sue  alone. 

For  injuries  to  the  person,  personal  or  real  property  of  the  wife  com- 
mitted before  the  marriage,  when  the  cause  of  action  would  survive  to  the 
wife,  she  must  join  in  the  action,  and  if  she  die  before  judgment  therein  it 
will  abate.  But  in  detinue  to  recover  personal  chattels  of  the  wife  in  the 
possession  of  the  defendant  before  the  marriage,  it  is  said  that  the  husband 
must  sue  alone,  because  the  law  transfers  the  property  to  him,  and  the  wife 
has  no  interest;  [sed  quare ;'\  though  in  detinue  for  charters  of  the  wife's 
inheritance  they  may  join,  on  account  of  the  continuing  interest  of  the 
wife  in  the  estate  to  which  they  relate. 

When  an  injury  is  committed  to  the  person  of  the  wife  during  coverture^ 
by  battery,  slander,  &c.  the  husband  and  wife  must  join,  if  the  action  be 
brought  for  the  personal  suffering  or  injury  to  the  wife,  and  the  declaration 
ought  to  conclude  to  their  damage,  and  not  to  that  of  the  husband  alone  ; 
for  the  damages  will  survive  to  the  wife  if  the  husband  die  before  they  are 
recovered  ;  and  care  must  be  taken  not  to  include  in  the  declaration  any 
statement  of  a  cause  of  action,  for  which  ihe  husband  alone  ought  to  sue. 
If  the  battery,  &c.  of  the  wife  deprive  the  husband  for  any  time  of  her  com- 
pany or  assistance,  or  if  she  be  maliciously  indicted,  and  the  husband  be 
thereby  put  to  expense,  he  may  sue  separately  for  such  consequential  inju- 
ries, and  he  may  in  the  same  action  proceed  for  a  battery  or  other  injury  to 
himself.  And  for  words  spoken  of  the  wife  not  actionable  of  themselves, 
but  which  occasion  some  special  damage  to  the  husband,  he  must  sue 
alone. 

With  respect  to  personal  property  when  the  cause  of  action  had  only  its 
inception  before  the  marriage,  but  its  completion  afterwards,  as  in  the  case 
of  trover  before  marriage,  and  conversion  during  it,  or  of  rent  due  before 
marriage,  and  a  rescue  afterwards,  the  husband  and  wife  may  join  or  sever 
in  trover  or  trespass,  though  not  in  detinue.  But  when  the  cause  of  action 
has  its  inception  as  well  as  completion  after  the  marriage,  the  husband 
alone  must  sue,  the  legal  interest  in  personalty  being  vested  by  the  marriage 
in  him  ;  and  therefore  a  declaration  in  trover  at  the  suit  of  the  husband  and 
wife  should  state  that  the  wife  was  possessed  before  marriage,  and  if  it  be 
stated  that  the  husband  and  wife  were  possessed,  the  defendant  may  de- 
mur, for  the  possession  of  the  wife  is  in  law  the  possession  of  the  husband, 
and  so  is  the  property  ;  and  the  same  rule  prevails  in  replevin,  though  if 
{he  husband  and  wife  join  therein,  and  the  defendant  avow,  it  will  after  ver- 
dict be  intended  that  the  taking  was  before  the  coverture,  and  that  the 
plaintiffs  then  had  a  joint  property ;  and  though  the  wife  may  join  in  tres' 


CHAP.  13.]  OP  THE  PARTIES  TO  THE  ACTION.  225 

pass  for  cutting  down  corn  upon  her  land,  yet  she  cannot  for  carrying  it 
away.  However,  a  feme  covert  executrix  may  and  ought  to  join  with  her 
husband,  the  declaration  stating  that  she  sues  in  autre  droit.  And  there 
are  some  cases  in  which  though  the  produce  of  the  wife's  labour,  &.c.  be 
the  property  of  the  husband,  yet  in  respect  of  her  being  the  meritorious 
cause  of  action  she  may  be  joined,  as  in  the  case  of  the  dippers  at  Tun- 
bridge  Wells. 

In  real  actions  for  the  recovery  of  the  land  of  the  wife,  and  in  a  writ  of 
waste  thereto,  the  husband  and  wife  must  join  ;  a  rule  which,  we  have  seen, 
obtains  also  in  detinue  of  charters.  But  when  the  action  is  merely  for  the 
recovery  of  damages  to  the  land,  or  other  real  property  of  the  wife  during 
the  coverture,  or  tor  a  tort  which  prejudices  a  remedy  by  husband  and  wife, 
as  a  rescue,  &c.  the  husband  may  sue  alone,  or  the  wife  may  be  joined,  her 
interest  in  the  land  being  stated  in  the  declaration.  But  a  demand  for  re- 
moval of  personal  property,  as  corn  or  grass  when  severed  from  the  land, 
ought  not  in  the  latter  case  to  be  included,  because,  as  we  have  seen,  the 
entire  interest  in  personalty  is  vested  in  the  husband. 

If  the  husband  survive,  he  may  support  an  action  of  trespass,  &c.  for 
any  injury  to  the  land  of  the  wife  committed  during  the  coverture,  but  not 
an  action  merely  for  the  battery  of  the  wife,  without  stating  special  damage 
to  himself;  and  in  the  latter  case,  if  the  wife  die  pending  the  action  it  Avill 
abate.  If  the  wife  survive,  any  action  for  a  tort  committed  to  her  or  to  her 
personal  or  real  property  before  marriage,  or  to  her  person  or  real  estate 
during  the  coverture,  will  survive  to  her;  and  she  may  include  in  one  ac- 
tion trespasses  to  her  land,  committed  as  well  in  the  lifetime  of  her  hus- 
band as  since  his  decease. 

The  consequences  of  a  mistake  in  the  proper  parties  in  the  case  of  hus- 
band and  wife,  may  be  collected  from  the  preceding  observations,  and  seem 
to  be  nearly  the  same  in  actions  in  form  ex  delicto  as  in  those  ex  contractu. 
If  the  wife  be  improperly  joined  in  the  action,  and  the  objection  appear 
from  the  declaration,  the  defendant  may  in  general  demur,  move  in  arrest 
of  judgment,  or  support  a  writ  of  error,  though  we  have  seen  that  after  ver- 
dict the  mistake  may  be  aided  by  intendment;  and  if  the  husband  sue  alone 
when  the  wife  ought  to  join,  either  in  her  own  right  or  in  autre  droit,  he 
will  be  non-suited;  for  though  in  general  the  non-joinder  of  plaintiffs  in 
an  action  for  a  tort  can  only  be  pleaded  in  abatement,  yet  in  those  cases 
the  party  suing  had  some  legal  interest  in  his  own  right,  in  the  property  af- 
fected, but  the  husband  in  the  case  of  the  battery,  &.C.  of  his  wife  has  re- 
ceived no  personal  injury  unless  a  loss  of  her  society  or  expense  ensued. 

Defendants.  As  between  the  original  parties,  and  with  reference  to  their 
liability.  In  personal  or  mixed  actions,  in  form  ex  delicto,  the  person  com- 
mitting the  injury  either  by  himself  or  his  agent,  is  in  general  to  be  defen- 
dant; but  real  actions  can  only  be  supported  against  the  claimant  of  the 
freehold.  All  natural  persons  are  liable  to  be  sued  for  their  own  tortious 
acts,  unconnected  with  or  in  dis-affirmance  of  a  contract ;  and  therefore, 
though  an  infant  cannot  in  general  be  sued  in  an  action  in  form  ex  contrac- 
tu, unless  for  necessaries,  he  is  liable  for  all  torts  committed  by  him,  as  for 
slander,  assaults  and  batteries,  &c. ;  and  also  in  detinue  for  goods  deliver- 
ed to  him  for  a  purpose  which  he  has  failed  to  perform,  and  which  goods 
he  refuses  to  return.  But  a  plaintiff  cannot  in  general,  by  changing  his 
form  of  action,  charge  an  infant  for  a  breach  of  contract,  as  for  the  negli- 
gent or  immoderate  use  of  a  horse,  &c. ;  nor  can  he  be  a  trespasser  by  prior 
or  subsequent  assent,  but  only  by  his  own  act.  A  married  woman  is  liable 
for  torts  actually  committed  by  her,  though  she  cannot  be  a  trespasser  by 
prior  or  subsequent  assent ;  and  though  a  lunatic  is  not  punishable  crmii- 
nally,  he  is  liable  to  a  civil  action  for  any  tort  hq  may  commit.  Corpora- 
voL.  2—29 


22G  OF  THE  PARTIES   TO  THE  ACTION.  [  BOOK  3, 

lions  and  incorporated  companies  may  be  sued  in  that  character  in  many- 
instances  for  damages  arising  from  the  neglect  of  a  duty  imposed  on  them 
by  particular  statutes  ;  and  though  it  has  been  supposed  that  a  corporation- 
cannot  be  sued  in  that  character  in  trespass  or  replevin,  and  that  the  action 
must  be  brought  against  each  person  who  committed  the  tort  by  name,  it 
has  recently  been  decided,  that  an  action  of  trover  is  sustainable  against  a 
corporation  in  that  character.  A  cestui  que  trust  cannot  in  general  support 
any  action  at  law  against  his  trustee  for  any  mis-management  of  the  estate  ; 
nor  can  one  joint-tenant  or  tenant  in  common  of  a  personal  chattel,  sue 
liis  co-tenant  at  law  in  trover,  or  for  taking  away  the  chattel,  but  for  de- 
stroying or  spoiling  it  an  action  may  be  supported,  and  one  tenant  in  com- 
mon of  real  property  may  support  ejectment,  or  trespass  for  mesne  profits, 
against  his  co-tenant,  when  there  has  been  an  actual  ouster,  or  case  for 
waste  to  the  land  or  trees  ;  and  though  a  party-wall  has  been  erected  at 
the  joint  expense  of  the  two  proprietors,  yet,  if  one  add  to  the  height,  and 
the  other  pulls  down  the  addition,  an  action  of  trespass  lies  against  him  for 
the  injury  to  the  moiety  of  the  party  making  such  addition. 

All  persons  who  direct  or  assist  in  committing  a  trespass,  or  the  conver- 
sion of  personal  property,  are  in  general  liable  as  principals,  though  not 
benefitted  by  the  act,  and  therefore  trover  may  be  supported  against  a  per- 
son who  illegally  makes  a  distress  or  seizes  goods,  though  the  same  were 
taken  by  him  in  the  character  of  bailiff  for  another,  or  as  a  custom-house 
officer,  &c.  And  where  several  are  concern-ed,  they  may  be  jointly  sued, 
Avhether  they  assented  to  the  act  before  or  after  it  was  committed,  unless 
the  party  be  an  infant  or  a  feme  covert,  who,  we  have  seen,  cannot  be  sued 
in  respect  of  a  subsequent  assent,  and  no  person  can  be  guilty  of  a  forcible 
entry  by  such  assent.  If,  however,  a  person  sue  out  execution,  and  give  a 
bond  of  indemnity  to  the  sheriff  to  induce  him  to  sell  the  goods  of  anath- 
er,  this  is  a  sufficient  interference  to  subject  him  to  an  action  ;  so  if  he  be 
in  company  with  the  sheriff's  officer  at  the  time  of  the  execution,  or  adopts 
his  act  by  receiving  goods  or  money,  but  the  mere  act  by  a  stranger  of  mak- 
ing an  inventory  or  drawing  a  notice  of  distress  is  not  such  an  interference 
as  will  subject  him  to  an  action  ;  and  though  trespass  may  be  supported 
against  a  sheriff  for  his  bailiff's  taking  the  goods  of  A  under  an  execution 
against  B,  it  cannot  against  the  phiintiff  in  the  action,  unless  he  actually 
interfered  or  assented  to  tlie  levy. 

The  liability  to  an  action  in  respect  of  reed  property,  may  be  for  misfea- 
zance  or  mal/eazance,  as  for  obstructing  ancient  lights  ;  or  for  nonfeazance, 
as  for  not  repairing  fences,  private  ways,  water  courses,  8cc.  In  these  casea 
the  action  should  in  general  be  against  the  occupier,  and  not  against  the 
owner,  if  the  premises  were  in  the  possession  of  his  tenant,  unless  he  cove- 
nanted to  repair:  but  if  the  owner,  having  erected  a  nuisance,  demise  the 
land,  an  action  may  be  supported  against  him,  though  out  of  possession, 
for  the  continuance  of  it,  for  by  the  demise  he  affirmed  such  continuance; 
and  every  occupier  is  liable  for  the  continuance  of  the  nuisance  on  liis  land, 
&.C.  thougli  erected  by  another,  if  he  refuse  to  remove  the  same  after  no- 
tice. When  there  are  several  owners  or  persons  chargeable  as  joint-ten- 
ants or  tenants  in  common,  in  respect  of  their  real  property,  though  the  ac- 
tion be  in  form  ex  delicto,  they  should  all  be  made  defendants,  or  the  party 
who  is  sued  alone  may  plead  in  abatement. 

2dly.  With  reference  to  the  number  of  the  parties.  There  are  some 
torts  which  in  legal  consideration  may  be  committed  by  several,  and  for 
which  a  joint  action  may  be  supported  against  all  the  parties  ;  but  if  in  le- 
gal consideration  several  cannot  concur  in  the  act  complained  of,  separate 
actions  must  be  brought  against  each  ;  thus  a  joint  action  may  be  brought 
against  several   for  a  malicious  prosecution,  an  assault  and  battery,  or  for. 


CHAP.  13.]  OF  THE  PARTIES  TO  THE  ACTION.  227 

composing  and  publishing  a  libel,  for  not  setting  out  tithe,  or  for  keeping 
a  dog  to  kill  game,  not  being  qualified  ;  but  a  joint  action  cannot  be  sup- 
ported against  two  for  verbal  slander,  and  there  ought  to  be  separate  ac- 
tions against  each ;  nor  will  debt  on  a  penal  statute  lie  against  several  for 
what  in  law  is  a  separate  offence  in  each,  as  against  two  proctors  for  not 
obtaining  and  entering  their  ceriificates,  or  against  several  for  bribery.  And 
if  a  joint  action  of  trespass  be  brought  against  several  persons,  the  plaintiff 
cannot  declare  for  an  assault  and  battery  by  one,  and  for  the  taking  away 
of  goods  by  the  others,  because  these  trespasses  are  of  several  natures. 
These  rules,  however,  do  not  obtain  in  criminal  proceedings  so  as  necessa- 
rily to  defeat  an  indictment  against  several  for  distinct  offences  in  separate 
counts,  though  the  court  have  a  discretionary  power  to  quash  the  indict-* 
ment,  where  inconvenience  might  arise  from  the  joinder  of  many  persons 
for  different  offences. 

if  several  persons  be  made  defendants  jointly,  where  the  tort  could  not 
in  point  of  law  be  joint,  they  may  demur,  and  if  a  verdict  be  taken  against 
all,  the  judgment  may  be  arrested  or  reversed  on  a  writ  of  error;  but  the 
objection  may  be  aided  by  the  plaintiff's  taking  a  verdict  against  one  only; 
or  if  several  damages  be  assessed  against  each,  by  entering  a  nolle  prosequi 
as  to  one  after  the  verdict  and  before  judgment.  In  other  cases,  where  in 
point  of  law  several  persons  may  be  jointly  guilty  of  the  same  offence,  the 
joinder  of  more  persons  than  were  liable  in  a  personal  or  mixed  action  in 
form  ex  deliclo,  constitutes  no  objectio*i,  and  one  of  them  may  be  acquitted, 
and  a  verdict  taken  against  the  others.  On  the  other  hand,  if  several  per- 
sons jointly  commit  a  tort,  the  plaintiff  in  general  has  his  election  to  sue  all 
or  any  of  the  parties,  because  a  tort  is  in  its  nature  a  separate  act  of  each 
individual  ;  and  therefore  in  actions  in  form  ex  delicto,  as  trespass,  trover, 
or  case  for  malfeazance,  against  one  only  for  a  tort  committed  by  several, 
he  cannot  plead  the  non-joinder  of  the  others  in  abatement  or  in  bar,  or 
give  it  in  evidence,  under  the  general  issue  ;  for  a  plea  in  abatement  can 
only  be  adopted  in  those  cases  where  regularly  all  the  parties  must  be  join- 
ed, and  not  where  the  plaintiff  may  ioin  them  all,  or  not,  at  his  election. 
And  even  if  it  appear  from  the  declaration  or  other  pleadings,  that  the  tort 
was  jointly  committed  by  the  defendant  and  another  person,  no  objection 
can  be  taken.  It  has  been  considered  that  this  rule  cpplies  not  only  in  ac- 
tions strictly  for  torts  unconnected  with  contract,  but  also  in  actions  in  form 
ex  delicto,  for  raisfeazance  and  malfeazance,  though  in  effect  for  the  breach 
of  a  contract,  as  in  cetse  against  common  carriers  and  bailees  for  negli- 
gence. But  when  an  action  on  the  case  is  merely  for  the  nonfeazance  of 
a  contract,  as  for  a  breach  of  a  warranty  on  a  sale,  the  joinder  of  too  many 
defendants  will  be  the  ground  of  nonsuit;  and  it  should  seem,  that  if  a 
joint  contractor  be  not  included,  the  defendant  may  plead  his  non-joinder 
in  abatement.  There  is  a  settled  distinction  between  mere  personal  actions 
of  tort,  and  such  as  concern  real  property  ;  for  if  one''tenant  in  common 
only  be  sued  in  trespass,  trover,  or  case,  for  any  thing  respecting  the  land 
held  in  common,  as  for  not  setting  out  tithe.  Sec.  he  may  plead  the  tenancy 
in  common  in  abatement.  And  in  an  action  of  debt  for  money  lost  at 
play,  the  defendant  may  plead  in  abatement,  that  the  money  was  due  from 
others  as  well  as  from  himself;  such  action,  though  given  by  statute,  being 
founded  on  contract.  These  distinctions  between  the  effect  of  too  many 
or  too  few  persons  being  made  defendants  in  actions  in  form  ex  contractu 
and  in  those  ex  delicto,  may  in  some  cases  render  it  advisable  to  adopt  the 
latter  form  of  action,  when  it  is  doubtful  who  should  be  made  the  defen- 
dants ;  and  in  an  action  on  the  case,  trover,  or  replevin,  no  inconvenience 
can  arise,  because  if  one  of  the  defendants  be  acquitted,  he  will  not  be  en- 
■titled  to  costs  ;  though  in  trespass  it  is  otherwise,  unless  the  judge  certify 


228  OF  THE  PARTIES  TO  THE  ACTION  [  BOOK  3. 

that  there  was  reasonable  cause  for  making  the  acquitted  person  a  defen- 
dant. Where  separate  actions  have  been  brought  against  several  defen- 
dants for  the  same  single  act  of  trespass,  the  party  against  whom  the  last 
action  was  commenced  may  plead  the  pendency  of  the  first  in  abatement. 
A  recovery  against  one  of  several  parties  to  a  joint  tort  frequently  precludes 
the  plaintiff  from  proceeding  against  any  other  party  not  included  in  such 
action  ;  thus  in  an  action  against  one  for  a  battery,  or  for  taking  away  the 
plaintiff's  posts,  or  destroying  grass  in  a  field  where  several  persons  are 
concerned,  the  recovery  against  one  will  be  a  bar  to  an  action  against  the 
others  ;  and  where  the  plaintiff  had  previously  recovered  in  an  action  against 
his  servant  for  quitting  his  service,  it  was  decided  that  he  could  not  also  sup- 
port an  action  against  the  person  for  seducing  away  such  servant ;  and  in 
these  cases  the  court  will,  in  general,  on  a  summary  application,  stay  the 
proceedings  in  the  second  action,  where  it  is  manifest  that  the  entire  da- 
mages have  been  recovered  in  the  first.  But  where  the  evidence  and  the 
damages  in  the  two  actions  might  be  different,  as  where  two  persons  on 
different  occasions  have  published  the  same  libel,  separate  actions  may  be 
supported  against  each.  So  the  recovery  against  one  party  in  an  action 
for  criminal  conversation,  is  no  bar  to  an  action  against  another  party  for  a 
similar  injury. 

3dly.  Where  the  interest  has  been  assigned,  &c.  As  in  the  case  of  a 
breach  of  covenant,  so  in  that  of  torts,  the  assignee  of  an  estate  is  not  lia- 
ble for  an  injury  committed  before  he  came  to  the  estate  ;  but  if  he  conti- 
nue a  nuisance,  he  may  be  sued  for  such  continuance  ;  though  prior  to  the 
action,  there  should,  in  some  cases,  be  a  request  and  a  neglect  to  abate  the 
nuisance  ;  and  if  a  tenant  for  years  erect  a  nuisance,  and  make  an  under- 
lease to  B,  an  action  lies  against  either  ;  and  if  A  take  the  goods  of  C, 
and  B  take  them  from  A,  C  may  have  his  action  against  A  or  B  at  his  elec- 
tion. 

4thly.  In  case  of  the  death  of  the  wrong-doer.  At  common  law  upon 
the  death  of  the  wrong-doer,  the  remedy  for  wrongs  ex  delicto,  and  uncon- 
nected with  contract,  in  general  determines  ;  though  the  statute  before  cit- 
ed gives  remedy  against  the  personal  representative  in  case  of  trespass  de 
bonis  asportalis. 

For  injuries  to  the  person,  if  the  wrong-doer  die  before  judgment  the  re- 
medy determines,  and  there  is  no  instance  of  an  action  having  been  sup- 
ported for  such  injuries  against  his  personal  representatives.  In  general, 
also,  no  action  in  form  ex  delicto,  as  trover,  case,  or  trespass,  can  be  sup- 
ported against  an  executor,  for  an  injury  to  personal  property,  committed 
by  the  testator ;  though  if  the  testator  converted  the  property  into  money, 
assumpsit  lies  against  his  executor;  or  if  the  property  came  in  specie  to 
the  possession  of  the  latter,  trover  would  be  sustainable  against  him,  though 
not  in  the  character  of  executor.  And,  though  we  have  seen  that  debt 
may  be  supported  by  an  executor  for  an  escape  on  final  process,  it  cannot 
against  the  executor  of  a  sheriff  or  goaler  ;  for  though  the  action  is  not  in 
form  ex  delicto,  it  is  considered  as  founded  on  a  tort,  the  negligence  of  the 
deceased  sheriff;  but  where  a  sheriff  has  levied  money  under  an  execution, 
and  dies  before  he  has  paid  it  over,  his  executors  may  be  sued  either  in  debt 
or  scire  facias  upon  his  return  of  fieri-feci,  or  by  action  of  assumpsit,  as 
for  money  had  and  received.  An  action  cannot  be  supported  against  an 
executor  for  a  penalty  forfeited  by  the  testator  under  a  penal  statute  ;  and 
though  it  has  been  holden  that  debt  lies  against  an  executor,  for  treble  the 
value  of  tithes  which  his  testator  ought  to  have  set  out,  that  decision  has 
been  doubted.  At  common  law  no  executor  was  answerable  for  a  devasta- 
vit by  his  testator;  but  by  statute,  [I  R.  C.  ch.  104,  §  5,]  30  Car.  II.  c.  7, 
(explained  and  made  perpetual  by  4  &  5  W.  &  M.  c  24,  s.  12,)  "the  exe- 


CHAP.  14.]  PROCEEDINGS  IN  SUITS.  229 

cutors  or  administrators  of  any  executor  or  administrator,  whether  rightful 
or  of  his  own  wrong,  who  shall  waste  the  estate  of  his  testator  or  intestate, 
shall  be  liable  and  chargeable  in  the  same  manner  as  their  testator  or  intes- 
tate would  have  been  if  they  had  been  living."  So  that  since  these  statutes, 
if  a  judgment  be  obtained  against  an  executor  who  afterwards  dies,  an  ac- 
tion may  now  be  brought  against  his  executor  or  administrator  upon  the 
judgment,  suggesting  a  devastavit  by  the  first  executor.  But  it  has  been 
considered  that  an  executor  de  son  tort  of  an  executor  de  son  tort  cannot 
be  sued  as  such  by  virtue  of  these  statutes. 

For  injuries  to  real  property  no  action  in  form  ex  delicto  can  in  general 
be  supported  against  the  personal  representatives  of  the  wrong-doer ;  though 
if  trees,  &c.  be  taken  away  and  sold  by  the  testator,  assumpsit  for  money 
had  and  received  lies  against  his  executor,  or  trover  if  they  remain  in  specie, 
and  the  executor  refuse  to  restore  them,  and  a  court  of  equity  will  frequent- 
ly afford  relief  against  the  executor  of  the  wrong-doer,  though  at  law  the 
action  moritur  cum  persona ;  and  therefore  where  a  tenant  for  life  cut  down 
timber  and  died,  relief  was  decreed  against  his  executors  in  favor  of  the  re- 
mainderman ;  and  there  is  an  exception  to  the  common  law  rule  in  the  case 
of  the  executors  of  a  deceased  rector  or  vicar,  &c.  against  whom  the  suc- 
cessor may  support  an  action  on  the  case  for  waste  and  dilapidations  per- 
mitted by  the  deceased. 

6thly.  In  the  case  of  marriage.  Actions  for  torts  committed  by  a  woman 
before  her  marriage  must  be  against  husband  and  wife  jointly  ;  for  torts 
committed  by  the  wife  during  coverture,  as  for  slander,  assaults,  &c.  or  for 
any  forfeiture  under  a  penal  statute,  they  must  also  be  jointly  sued  ;  and 
the  plaintiff  cannot  in  the  same  action  proceed  also  for  slander,  assault,  or 
other  tort  committed  by  the  husband  alone ;  nor  can  the  husband  and  wife 
be  sued  jointly  for  the  slander  of  both.  But  for  assaults  or  other  wrongs, 
in  which  two  persons  may  concur,  the  husband  and  wife  may  be  sued  joint- 
ly for  the  act  of  both,  and  the  acquittal  of  the  husband  will  not  preclude 
the  plaintiff  from  recovering.  Detinue  can  only  be  supported  against  the 
husband.  But  if  a  woman  convert  goods  before  her  marriage,  or  during  it, 
without  her  husband,  trover  may  be  supported  against  her  and  the  husband  ; 
and  for  a  conversion  by  husband  and  wife  the  action  may  be  against  him 
alone.  A  feme  covert  can  only  be  sued  for  her  own  actual  wrong  or  tres- 
pass, and  cannot  become  a  trespasser  merely  by  her  previous  or  subsequent 
assent  during  coverture ;  but  she  may  be  jointly  sued  with  her  husband  for 
enticing  away  or  harboring  the  servant  of  another.  In  an  action  of  tres- 
pass, &c.  against  husband  and  wife,  for  her  tort  before  or  during  coverture, 
if  she  die  before  judgment,  the  suit  will  abate  ;  but  if  the  husband  die  or 
become  bankrupt,  her  liability  will  continue. 

If  the  wife  be  sued  alone  for  her  tort  before  or  after  marriage,  she  must 
plead  her  coverture  in  abatement,  and  cannot  otherwise  take  advantage  of 
it;  but  if  the  husband  and  wife  be  sued  jointly  for  torts  of  which  they 
could  not  in  law  be  jointly  guilty,  as  for  the  slander  of  both,  if  the  objec- 
tion appear  on  the  face  of  the  declaration  the  defendant  may  demur,  move 
in  arrest  of  judgment,  or  support  error. 


CHAPTER  XIV. 

OF  THE  PURSUIT  OF  REMEDIES  BY  ACTION ;  FIRST,  OF  THE  ORIGINAL  WRIT. 

The  course  of  proceeding  in  the  courts  of  this  commonwealth,  in  the 
prosecution  of  actions,  differs  so  very  materially  from  the  English  practice, 
that  I  shall  better  attain  my  abject  by  presenting  the  student  with  an  origi- 


^30  FROCEEDINCfS  IN  SUITS.  [  book  8. 

nal  sketch,  than  by  attempting  to  interweave  Mr.  Blackstone's  account  with 
my  own  remarks.  In  doing  this,  however,  I  shall  proceed  upon  the  sup- 
position, that  the  eighteenth  and  nineteenth  chapters  of  the  third  book  of 
the  commentaries  have  been  carefully  examined,  since  an  acquaintance 
with  the  English  system  not  only  conduces  to  the  clear  comprehension  of 
our  own,  but  is  also  absolutely  necessary  to  enable  us  to  read  understand- 
ino"ly  the  cases  in  the  British  reporters. 

The  great  and  frequent  changes  in  our  system  of  laws,  indeed,  renders  it 
difficult  to  keep  pace  with  legislative  enactments.  The  Editor  of  the  Vir- 
ginia edition  of  Blackstone's  Commentaries  gave,  in  1803,  a  valuable  sy- 
nopsis of  the  mode  of  proceeding  in  suits  in  Virginia,  which  has  become 
utterly  obsolete  since  the  abolition  of  the  district  court  system,  and  the 
erection  of  the  superior  courts  upon  its  ruins.  Hence,  it  became  necessary 
when  1  commenced  my  course  of  lectures  that  I  should  conform  thein  to 
the  new  state  of  things,  and  mark  out  the  changes  that  had  been  effected, 
by  copious  observations.  This  labor  also  has  been  rendered  in  no  inconside- 
rable degree  useless  ;  for  since  those  lectures  were  published,  an  important 
statute  has  been  enacted,  changing  so  essentially  the  law  in  relation  to  the 
prosecution  of  actions,  as  to  render  necessary  an  entirely  new  view  of  the 
object.     I  propose  to  oft'er  this  in  the  following  sheets. 

An  attention  to  the  Appendix  of  the  late  Editor  of  the  Commentaries 
will  have  satisfied  the  student  that  at  an  early  period  we  threw  off"  in  Vir- 
ginia many  of  the  cumbrous  trappings  of  justice,  and  satisfied  ourselves 
with  a  simple  machinery,  which  united  in  itself  the  advantages  of  that  from 
which  it  was  a  deviatioai,  while  it  combined  with  them  cheapness  and  expe- 
dition. The  experiment  so  far  succeeded  that  the  legislative  body  have 
from  time  to  time  pushed  the  principle  of  simplicity  in  judicial  process  far- 
ther and  farther,  by  lopping  oft'  first  one  and  then  another  of  its  useless  ap- 
pendages. Thus  we  find  that  at  the  time  of  the  publication  of  Judge 
Tucker's  Blackstone,  and  even  so  late  as  the  compilation  of  my  original 
course  of  lectures,  appearance  bail  was  required  in  all  actions  where  bail 
was  demandable  at  all.  This  appearance  bail,  which  answered  to  the  spe- 
cial bail  in  the  English  courts,  was  bound  for  the  defendant's  appearance  to 
the  action,  and  as  he  could  only  appear  by  giving  what  ive  call  special  bail, 
(which  answers  to  the  bail  above  in  England,)  he  was  always  fixed  for  the 
debt  by  the  omission  to  give  this  special  bail.  Yet  he  was  permitted  (if  he 
was  a  solvent  person)  even  to  enter  himself  special  bail  at  any  time  before 
the  suit  was  tried,  and  thus  change  entirely  the  nature  of  his  responsibility. 
For  the  appearance  bail  was  bound  for  the  debt  itself,  if  special  bail  was  not 
given  ;  but  becoming  special  bail,  he  only  became  bound  for  the  surrender 
to  prison  of  the  defendant's  person.  Hence  it  was  the  uniform  practice  for 
the  appearance  bail  to  enter  himself  special  bail,  in  order  to  relieve  him- 
self from  his  responsibility  in  part,  in  case  the  defendant  did  not  relieve 
him  by  finding  other  special  bail ;  nor  was  this  ever  omitted  except  through 
accident  or  mistake.  Thus  it  happened  that  by  some  casualty  the  bail  was 
sometimes  fixed  for  the  debt,  though  he  might  have  been  relieved  had  he. 
entered  himself  special  bail ;  and,  on  the  other  hand,  in  nine  cases  out  of 
ten,  the  complicated  machinery  of  appearance  and  special  bail  proved  to 
be  unnecessary,  as  the  proceedings  almost  always  resulted  in  special  bail 
being  given.  These  considerations  have  at  length  induced  the  legislature 
to  abolish  appearance  bail  altogether,  and  now  upon  a  defendant's  being 
taken,  if  bail  is  re(iuirod,  the  sheriff"  proceeds  to  take  special  bail  at  once, 
who  is  liable  only  (or  the  forthcoming  of  the  defendant's  body.  This  al- 
teration in  the  law  has  produced  a  material  change  in  the  mode  of  pro- 
ceeding in  personal  actions,  as  will  be  presently  explained.  At  present  we 
shall  proceed  to  shew  how  the  several  species  of  actions  are  commenced. 


CHAP.  14.]  PSOCEEDINGS  IN  SUITS.  231 

1.  The  prosecution  of  a  writ  of  right,  which  is  the  only  real  action  now 
used  in  our  courts,  is  always  by  original  or  praecipe  quod  reddat,  as  we  have 
already  seen  in  some  detail  under  the  head  of  writs  of  right. 

2.  In  mixed  actions,  also,  so  called  because  the  party  recovers  not  only 
the  realty,  but  damages,  (such  as  the  action  of  waste,)  the  suit  is  commenc- 
ed by  original.  For  the  process  in  all  such-  actions  at  the  common  law 
was  by  original  ;  and  our  statute  has  provided  (I  R.  C.  ch.  128,  §  34,)  that 
process  in  all  real  actions  shall  be  according  to  the  course  of  the  common 
law.     The  form  of  the  original  may  be  found  in  Jac.  Law  Diet.  Waste. 

3.  In  actions  of  ejectment,  as  we  have  already  seen,  the  suit  is  com- 
menced by  the  delivery  of  a  copy  of  a  declaration  in  ejectment,  accompa- 
nied by  a  notice  to  appear  and  defend  the  suit,  and  there  is  no  writ,  either 
original  or  otherwise,  sued  out.  Enough,  however,  has  been  said  of  this 
action  elsewhere. 

4.  We  proceed,  therefore,  to  the  subject  of  the  prosecution  of  personal 
actions,  which  include  not  only,  as  we  have  seen,  injuries  to  the  person,  as 
assault  and  battery,;  or  to  the  personal  property  as  trespass  de  ivjuria  or  de 
bonis  asportatis ;  but  also  breaches  of  contract,  as  the  non-payment  of 
debts  and  th"e  breaches  of  covenants,  and  even  injuries  to  real  property, 
nuisances,  and  the  like.  All  these  are  commenced  by  the  same  species  of 
process. 

And  here  we  must  remark,  that  in  Virginia  the  capias  or  capias  ad  re- 
spondendum is  the  first  or  original  process  in  the  commencement  of  all  per- 
sonal actions  (except  in  cases  of  defendants  who  are  privileged  from  arrest, 
in  which  a  summons  is  substituted  for  the  capias.)  It  is  a  writ  directed  toi 
the  sheriff  of  tlie  county  in  which  the  defendant  resides,  or  is  supposed 
most  likely  to  be  found,  and  issuing  from  the  clerk's  office  of  that  court  in 
which-  the  plaintiff  proposes  to  prosecute  his  action,  commanding  him  to 
take  the  body  of  the  defendant  and  him  safely  keep,  to  answer  the  plaintifT 
of  a  plea  of  debt,  covenant,  &c.  &c.  This  writ  must  always  be  issued  from 
the  office  of  that  court  in  which  by  law  the  suit  is  required  to  be  brought  ;- 
and  hence  it  becomes  necessary  to  advert  first  to  the  subject  of  the  juris- 
diction of  the  court  in  personal  actions,  (for  real  and  mixed  actions  and 
ejectments  must  always  be  brought  in  the  superior  or  county  court  of  that 
county  in  which  the  land  lies.) 

On  the  subject,  then,  of  the  jurisdiction  in  personal  actions,  it  is  enacted 
that  "except  where  it  is  otherwise  expressly  provided,  no  capius  ad  re- 
spondendum shall  be  issued  against  any  person  in  any  other  county  or  cor- 
poration than  that  in  which  he  resides,  until  a  non  est  inventus  has  been  re- 
turned in  his  own  county  or  corporation  upon  a  capias  for  the  same  cause 
of  action  ;  and  every  writ  issued  contrary  to  this  provision,  is  directed  to 
be  considered  void,  and  to  be  dismissed  upon  the  first  calling  thereof."  (I 
R.  C.  ch.  128,  §  41.)  The  objection  can  only  be  made,  however,  by  plea 
in  abatement.  1  Mun.  284.  2  Mun.  240.  To  this  provision  there  are 
three  exceptions  contained  in  the  same  section  :  1.  That  where  two  per- 
sons are  jointly  or  jointly  and  severally  bound  for  the  performance  of  any 
^contract  or  payment  of  money  by  bond,  covenant,  or  otherwise,  (which  of 
course  will  include  assumpsits,)  they  may  be  sued  jointly  in  any  county  in 
which  either  of  them  reside,  and  the  process  maybe  served  on  the  non-re- 
sident defendant  if  he  be  found  therein.  2.  Though  the  person  sued  does 
not  reside  in  the  county  where  the  suit  is  brought,  yet  if  the  cause  of  ac- 
tion arose  there,  the  court  will  have  jurisdiction.  Thus,  if  I  reside  in 
Berkeley,  but  purchase  goods  in  Frederick,  or  execute  my  bond  there,  or 
commit  an  assault  and  battery,  or  trespass  on  lands  there,  the  suit  rnay  be 
properly  brought  there,  provided  I  can  be  taken  in  the  county;  but  it  can- 
not issue  from  Frederick  to  the  sheriff"  of  Berkeley,  commanding  him  to- 


232  PROCEEDINGS  IN  SUITS.  [book  3. 

take  my  body  and  have  it  before  the  court  of  Frederick.  3.  If  a  person 
has  no  fixed  residence  in  the  commonwealth,  a  writ  may  be  issued  against 
him  in  any  county  in  which  he  may  be  found.     See  Post.  234. 

This  statute  has  removed,  I  conceive,  the  difficulties  which  often  existed 
at  the  common  law,  as  to  laying  the  venue,  as  it  is  called  ;  and  by  it  is  also 
to  be  determined  the  question  whether  particular  actions  are  local  or  tran- 
sitory. Thus  at  common  law  there  was  often  much  dispute  whether  the 
action  for  rent  was  local  or  transitory.  1  Saun.  241,  b.  n.  6,  241,  n.  5.  But 
our  law  provides  that  all  actions  of  debt  for  rent  in  arrear,  actions  for  use 
and  occupation,  actions  of  trespass  and  for  waste,  may  be  prosecuted  in  the 
superior  or  inferior  courts  of  the  county  where  the  defendant  may  be  found, 
in  like  manner  as  transitory  actions  may  be.  1  R.  C.  ch.  113,  §  14.  This 
subject  will  be  resumed  hereafter  under  the  head  of  pleading. 

The  practitioner  having  upon  the  principles  of  these  acts  (ch.  128,  §  41, 
and  ch.  113,  §  14,)  determined  the  matter  of  jurisdiction  of  the  court,  next 
proceeds  to  file  with  the  clerk  a  memorandum  in  the  following  form  or  to 
the  following  effect : 

To  the  Clerk  of  the  Superior  Court  [or  County  Court  as  the  case  may  ie] 

of County;  Issue  A.  B.  vs.  C.  D.  debt  for  $\i)0.     Damage  $50. 

Endorse  debt  on  bond  bail  required.     A.  H.  P.  Pllfs  Atto. 

This  form  is  to  be  varied,  of  course,  according  to  the  nature  of  the  suit, 
and  number  of  the  parties  [plaintiffs  or  defendants.]  It  would  seem,  from 
the  form  in  Mr.  Blackstone's  Appendix,  that  the  capias  in  debt  in  England 
did  not  specify  damages  ;  but  with  us  the  damages  are  always  inserted  in 
the  writ. 

Upon  the  payment  of  the  tax  of  the  writ,  the  clerk  upon  the  above  or- 
der proceeds  to  issue  the  capias.  This  tax  [which  is  usually  paid  by  the 
attorney  for  his  client,  who  is  bound  to  reimburse  it,]  amounts  to  one  dol- 
lar or  writs  of  subpa;nas  in  chancery  in  the  county  court,  and  to  one 
dollar  and  fifty  cents  on  writs  in  the  superior  court,  or  subpoenas  in  chan- 
cery in  superior  courts  of  chancery.  The  capias  with  us  is  in  the  form  fol- 
lowing : 

The  commonwealth  of  Virginia,  to  the  sheriff  of  Frederick  county,  greet- 
ing :  You  are  hereby  commanded  to  take  Thomas  Thriftless,  if  he  be  found 
within  your  bailiwick,  and  him  safely  keep,  so  that  you  have  his  body  before 
the  justices  of  our  said  county  court,  (a)  at  the  court-house  thereof,  on  the 
Monday  before  the  first  Tuesday  in  March  next,  (b)  to  answer  Wm.  Touch- 
penny  of  a  plea  of  debt  for  five  hundred  pounds,  (c)  damage  one  hundred 
dollars,  and  have  then  there  this  writ. 

Witness,  Thomas  Allen  Tidball,  clerk  of  our  said  county  court,  at  the  court- 
house aforesaid,  the  first  day  of  February,  1825,  and  in  the  50th  year  of  the 
commonwealth.  T.  A.  Tidball,  C.  F.  C. 

(a)  If  in  the  superior  court,  the  words  are,  "  before  the  judge  of  our  su- 
perior court  for  the  county  of  Frederick." 

(b)  In  the  superior  court  the  return  day  may  be  to  any  rule  day.  Here 
the  return  day  is  to  March  court. 

(c)  The  sum  here  inserted  must  be  the  amount  of  the  bond  either  in 
pounds  or  dollars,  according  as  the  bond  itself  is  so. 

On  the  back  of  the  writ  an  endorsement  is  made  thus  : 

"Debt  on  bond— bail  required."  A.  H.  Powell,  P.  Q." 

In  like  manner  aa  endorsement  must  be  made  in  all  other  actions.     For 

example, 

In  covenant.     "Covenant — bail  required." 

In  case  sur  assumpsit.     "Assumpsit — no  bail  required." 

In  case  for  breach  of  contract.     "Case  to  recover  damages  for  breach  of 

parol  agreement— no  bail  required." 


CHAP.  14.]  PROCEEDINGS  IN  SUITS.  233 

In  case  for  an  injury.  "Case  to  recover  damages  for  slanderous  words — 
no  bail  required." 

In  trover.     "  Trover — no  bail  required." 

In  detinue.     "Detinue — bail  required." 

In  assault  and  battery.  "  Trespass,  assault  and  battery'— no  bail  requir- 
ed."    And  so  in  like  cases. 

The  writ  thus  issued  and  endorsed  is  placed  in  the  hands  of  the  sheriflf, 
who  is  to  proceed  to  execute  the  same.  In  those  cases  where  bail  is  not 
demanded  by  the  writ,  the  service  of  it  consists  merely  in  a  personal  notice 
of  it  given  to  the  defendant,  the  process  in  such  cases  being  in  effect  no 
more  than  a  summons  ;  or  he  may  take  the  engagement  of  an  attorney 
practicing  in  the  court  endorsed  upon  the  writ  to  appear  for  the  defendant, 
which  engagement  ought  never  to  be  entered  into,  however,  unless  the  at- 
torney is  thereto  authorized ;  and  when  entered  into,  must  be  fulfilled  un- 
der certain  penalties  prescribed  by  law.  But  if  the  action  be  one  of  those 
in  which  bail  is  required,  and  there  is  endorsed  on  the  writ  the  true  species 
of  action,  then  the  sheriff  is  bound  literally  to  perform  the  precept  thereof 
by  committing  the  defendant  to  close  custody,  unless  he  shall  give  bail,  as 
hereinafter  described.  Hence  it  may  be  seen  how  essential  the  endorse- 
ment on  the  writ  is ;  for  if  the  action  be  one  in  which  bail  might  lawfully 
be  demanded,  yet  is  the  sheriff  excused  for  not  taking  bail  unless  the  true 
species  of  action,  and  that  bail  is  required,  be  endorsed  upon  the  original 
writ  or  subsequent  process,  for  he  is  not  bound  to  look  into  the  body  of 
the  writ  to  see  whether  he  ought  to  take  bail.  See  1  Wash.  153, 154.  On 
the  other  hand,  if  the  action  be  one  in  which  bail  cannot  be  lawfully  de- 
manded, if  the  true  species  of  action  required  be  not  endorsed  by  the  plain- 
tiff or  his  attorney,  [or  by  the  clerk,  by  their  direction,  which  amounts  to 
the  same  thing,]  the  suit  shall  be  dismissed  with  costs.  1  R.  C.  ch.  128, 
§  42,  43.  No  plea  is  necessary  in  this  case.  The  court  will  inspect  the 
writ  on  defendant's  motion,  which  motion  should  be  made  at  farthest  during 
the  term  next  after  the  judgment  was  confirmed  in  the  oflice.    1  Wash.  153. 

It  behoves  us,  therefore,  to  inquire  in  what  cases  can  bail  be  demanded. 
And  here  it  may  be  remarked,  that  in  some  cases  bail  is  demanded  as  a 
matter  of  right  by  the  party  himself  who  commences  the  suit,  but  in  others 
it  can  only  be  required  under  an  order  of  a  judge  or  justice  of  the  peace. 

I.  Bail  may  be  demanded  as  of  right  in  actions  of  debt  founded  upon 
any  writing  obligatory,  bill,  or  note  in  writing,  for  the  payment  of  money  or 
tobacco,  and  in  all  actions  of  covenant  or  detinue.  1  R.  C.  chap.  128,  § 
43.  But  in  an  action  of  debt  on  a  judgment,  bail  is  not  demandable  as  of 
right,  because  it  is  not  within  the  description  of  a  writing  obligatory,  &c. 
And  in  like  manner  it  may  here  be  observed  that  bail  cannot  be  demanded 
on  bonds  with  collateral  conditions.  4  Ran.  413.  These  are  such  as  (if 
not  single  bonds)  are  to  be  defeasanced  by  the  payment  of  a  lesser  ascer- 
tained sum,  called  the  principal,  and  which  no  assessment  by  a  jury  is  ne- 
cessary to  estimate  and  render  certain  : — they  are  such  as,  when  declared 
on,  do  not  require  a  particular  breach  to  be  assigned  in  order  to  the  assess- 
ment of  damages  by  a  jury.  On  the  contrary,  if  there  be  no  ascertained 
principal  sum  for  which  judgment  can  be  rendered,  and  if  a  particular  as- 
signment of  breaches  is  necessary  to  notify  the  defendant  of  the  object  of 
the  suit,  the  bond  is  one  with  collateral  condition.  Gilb.  191.  2  Call,  238, 
239.  6  Cranch,  82.  Thus  a  bond  in  the  penalty  of  £100,  conditioned  to 
pay  £50,  is  a  money  bond.  But  if  the  condition  be  to  deliver  one  hundred 
bushels  of  wheat,  or  make  a  title  to  land,  or  such  like,  it  is  a  bond  with 
collateral  condition. 

The  undertaking  of  the  endorser  of  a  negotiable  note  is  not  considered 
as  a  note  for  payment  of  money  within  the  meaning  of  this  act,  and  the 
VOL.  2—30 


2S^4  FROCEEDINGS  IN  SUITS.  [boo»3. 

endorser  cannot  therefore  be  held  to  bail  as  matter  of  right.  And  hence, 
if  the  action  be  brought  jointly  against  drawer  and  endorsers,  bail  cannot 
be  demanded  without  the  direction  of  a  judge  or  justice  of  the  peace  upon 
affidavit  according  to  the  provisions  which  will  be  presently  mentioned.  4 
Ran.  152. 

2.  Bail  is  demandable  in  actions  upon  statutes  authorizing  bail  to  be  tak- 
en.    1  R.  C.  ch.  l->8,  §  4:3. 

3.  Bail  can  in  no  case  be  demanded  as  of  right  of  heirs,  (see  Bac.  Bail 
B,)  or  of  executors  or  administrators  in  any  suit  brought  to  establish  the 
plaintiff's  demand  against  the  decedant's  estate ;  notwithstanding  the  ac- 
tion be  upon  bond  for  payment  of  money.  For  the  debt  is  not  their  debt. 
But  in  an  action  suggesting  a  devastavit,  or  upon  the  executor's  or  admi- 
nistrator's bond,  bail  may  be  directed  upon  proper  affidavit ;  for  the  charge 
is  then  personally  against  them.  But  not  without  affidavit  under  our  law,  I 
conceive  :  for  the  judgment  is  not  within  the  language  of  the  act. 

In  the  cases  above  enumerated,  we  perceive  the  arbitrary  power  of  de- 
manding bail  is  vested  in  the  plaintiff,  because  of  the  nature  of  the  action 
which  he  has  brought.  A  dangerous  power  it  is,  and  not  unfrequently 
abused.  Its  liability  to  abuse  is  obvious  from  a  single  illustration.  If  I  give 
my  bond  for  $1000,  and  it  is  all  paid  ofi'  but  $50,  I  must  go  t-o  jail  unless 

1  can  give  bail  for  the  original  amount  of  the  bond,  if  the  plaintiff  chooses 
to  demand  it.  It  were  to  be  wished  that  our  practice  corresponded  with 
that  of  other  states,  where  bail  cannot  be  demanded  on  a  bond  without  an 
affidavit  of  the  amount  due  upon  it. 

4.  In  no  other  case  but  those  enumerated  can  the  plaintiff  demand  bail 
as  of  right ;  but  in  all  other  personal  actions  it  shall  be  lawful  for  any  judge 
of  the  general  court,  or  any  justice  of  the  peace  for  any  county  or  corpo- 
ration, upon  proper  affidavit  verifying  the  justice  of  the  plaintiff's  action  and 
shewing  probable  cause  of  apprehension  that  the  defendant  will  depart  from 
the  jurisdiction  of  the  court  so  that  process  of  execution  cannot  be  served 
upon  him,  to  direct  bail  to  be  taken  by  endorsement  on  the  writ,  and  the 
sheriff  shall  govern  himself  accordingly. 

Before  this  act  the  nature  of  the  affidavit  was  left  somev/hat  indefinite. 
Great  strictness  seems  always  to  have  prevailed  as  to  affidavits  to  hold  to 
bail.  1  Wils.  1-2 1,  231,  229,  239.  Str.  1209,  1210,  1226.  2  Barn.  &  Aid. 
526.     See  also  2  E.  453.     3  E.  309.     7E.  194.     11  E.  315.     1  H.  B.  10. 

2  T.  R.  716,  717.  2  T.  R.  55.  3  T.  R.  575,  364.  As  to  executors  or 
assignees,  see  1  T.  R.  83.  2  B.  &  P.  293.  They  must  swear  to  their  be- 
lief of  the  justice  of  the  debt.  The  affidavit  of  the  original  creditor  or  con- 
tracting party  must  be  positive,  and  shew  the  nature  of  the  demand.  See 
5  T.  R.  552,  and  the  authorities  above. 

If  the  affidavit  is  defective  on  which  the  defendant  is  held  to  bail,  the 
defect,  it  is  said,  cannot  in  general  be  supplied.  5  T.  R.  552.  1  B.  &,  P. 
227.  The  objection  cannot  be  made  where  bail  has  been  given  in  conse- 
quence of  the  bad  affidavit,  for  giving  bail  is  considered  a  waiver  of  the  de- 
fect. 7  T.  R.  375.  1  East,  330.  1  M.  &  S.  230.  Where,  however,  the 
defendant  has  not  given  bail  and  is  yet  in  custody,  and  moves  to  be  dis- 
charged because  of  the  insufficiency  of  the  affidavit,  a  supplemental  affida- 
vit is  sometimes  admitted — and  very  reasonably,  I  should  think.  1  H.  B. 
285.     No  counter  affidavit  can  be  received.     2  E.  Rep.  453. 

Where  bail  is  improperly  required  by  a  magistrate's  endorsement  on  af- 
fidavit, the  motion  should  be  to  discharge  the  bail,  — not  to  dismiss  the  suit. 
Said  rightly  I  conceive  by  Leigh  arg.  3  Ran.  51. 

5.  But  though  bail  may  not  be  demanded  by  the  writ,  the  court  may,  for 
good  cause  shewn,  rule  the  defendant  to  give  bail,  and  refuse  to  permit 
him  to  plead  ;  or  may  set  aside  his  plea  and  proceed  to  judgment  against 


CHAP.  14.]  PHOCEEDINGS  IN  SUITS.  285 

him  if  he  refuse  to  give  bail,  or  may  cause  him  to  be  arrested  and  commit- 
ted to  prison.     1  R.  C.  eh.  128,  §  50. 

When  bail  is  required,  the  sheriff  must  literally  obey  the  writ  by  arrest- 
ing the  defendant.  An  arrest  must  be  by  seizing  or  touching  the  defen- 
dant's body,  or  by  any  other  act  whereby  the  defendant  can  be  considered 
as  being  within  the  power  of  the  officer;  a  matter  of  which  we  shall  treat 
hereafter  more  fully.  After  touching  the  defendant,  the  sheriff  "  may  justi- 
fy breaking  open  the  house  in  which  he  is  to  take  him :  otherwise  he  has 
no  such  power;  but  must  watch  his  opportunity  to  arrest  him.  For  every 
man's  house  is  looked  upon  by  the  law  to  be  his  castle  of  defence  and  asy- 
lum, wherein  he  should  sufTer  no  violence.  Which  principle  is  carried  so 
far  in  the  civil  law,  that  for  the  most  part  not  so  much  as  a  common  cita- 
tion or  summons,  much  less  an  arrest,  can  be  executed  upon  a  man  within 
his  own  walls." 

Suitors,  witnesses,  and  others,  attending  any  courts  of  record  on  business, 
are  not  to  be  arrested  during  their  actual  attendance.  8  T.  R.  536.  1  R. 
C.  ch.  131,  §  7.  ISalk.  544.  Process  must  not  be  executed  on  Sunday.  1 
R.  C.  ch.  78,  §  19. 

Formerly,  as  has  already  been  observed,  when  a  writ  requiring  bail  came 
into  the  hands  of  the  sheriff  he  was  bound  to  take  appearance  bail  and  an 
appearance  bail  bond,  out  of  which  provision  sprung  a  variety  of  decisions, 
but  now  (see  Sess.  Acts,  1825,  ch.  22, )  this  useless  and  cumbrous  contri- 
vance is  abolished,  and  the  lav/  provides  that  the  sheriff  where  bail  is  re- 
quired shall  not  take  appearance  bail  or  an  appearance  bail  bond,  but  that 
the  defendant  shall  be  discharged  from  custody  upon  giving  good  special 
bail  to  the  action.  This  ig  done  by  the  bail  entering  into  what  is  called  a 
recognizance,  by  which  he  engages  for  the  defendant  that  in  case  he  is  cast 
in  the  suit,  he  (the  defendant)  will  satisfy  the  condemnation  of  the  court, 
or  render  his  body  to  prison  in  execution  for  the  same,  or  that  he  (the  bail) 
will  do  it  for  him.  See  the  form  1  R.  C.  ch.  128,  §  51.  When  the  defen- 
dant, therefore,  is  taken  by  the  sheriff,  he  may  discharge  himself  by  procur- 
ing some  person  to  become  bail  for  him  by  entering  into  such  a  recognizance. 
If  this  is  done  before  the  return  day  of  the  writ,  the  recognizance  may  be 
taken  by  the  sheriff  himself,  and  certified  in  the  same  manner  as  justices  of 
peace  or  judges  certify  such  recognizances  ;  but  in  this  case  it  must  be  also 
accompanied  by  a  certificate,  underwritten,  subscribed,  and  sealed  by  the 
bail,  of  his  acknowledgment  of  the  recognizance.  See  the  form,  Sess.  Acts, 
1825,  ch.  22,  §  2.  When  the  defendant  does  not  give  bail  before  the  re- 
turn day  of  the  writ,  the  sheriff  commits  him  to  prison,  and  after  the  return 
day  his  power  of  taking  bail  ceases,  but  the  defendant  may  then  procure 
some  person  to  enter  his  bail  by  recognizance,  acknowledged  before  any 
judge  of  the  general  court,  or  any  justice  of  the  peace,  or  mayor,  recorder, 
or  alderman  of  any  corporation.  The  recognizance  of  bail  is  in  all  cases 
to  be  returned  to  the  clerk  of.  the  court  where  the  action  was  brought,  and 
the  bail  is  entitled  to  a  bail  piece  certifying  his  having  become  bail,  which 
bail  piece  gives  him  the  pov/er  to  take  the  defendant  when  he  pleases,  and 
discharge  himself  by  delivering  him  again  to  prison.  See  the  form,  1  R. 
C.  ch.  128,  §  52. 

The  writ  of  capias  ad  respondendum  in  the  county  courts  must  be  always 
made  returnable  to  the  first  day  of  the  quarterly  term  next  ensuing  the  date 
of  the  writ.  In  the  superior  courts  it  may  be  returnable  either  to  the  first 
day  of  the  ensuing  term  or  to  some  previous  rule  day.  Tliis  was  for  a  short 
time  also  the  law  as  to  the  county  courts,  [see  1  R.  C.  ch.  128,  §  70,]  but 
the  provision  was  soon  repealed.     See  Sess.  Acts,  Feb.  1822,  ch.  18. 

The  capias  may  be  executed  by  the  sheriff  at  anytime  before  the  return 
day  is  past,  and  it  must  be  so  executed,  or  his  power  to  execute  that  writ  is 


236  PROCEEDINGS  IN  SUITS.  [  BOOK  3. 

gone,  and  a  new  process  called  an  alias,  which  is  but  a  continuation  of  the 
other,  must  issue.  It  being  executed,  the  defendant  must  regularly  appear 
according  to  its  command  on  the  appearance  day  in  the  office.  The  ap- 
pearance day  was  formerly  the  day  after  the  rising  of  the  court,  but  now 
the  defendant  must  appear  on  the  return  day  of  the  writ.  1  R.  C.  ch.  128, 
§  42.  It  has  been  decided  that  the  appearance  on  any  of  the  rule  days,  at 
the  rules  to  which  the  writ  is  returnable,  is  good.  By  White  J.  in  the  su- 
perior court.  The  rules  are  continued  open  six  days.  This  appearance 
does  not  consist  in  the  personal  attendance  of  the  defendant  at  the  clerk's 
office  ;  for  in  actions  where  no  bail  was  required,  if  an  attorney  entered  an 
appearance  for  the  defendant  on  the  docket,  that  was  sufficient: — and  though 
where  appearance  bail  was  demanded  and  given,  there  could  be  no  suffi- 
cient appearance  without  the  defendant's  procuring  special  bail,  yet  even 
then  the  bail  was  permitted  to  defend  the  suit,  and  an  attorney  might  have 
appeared  for  him.  At  present,  however,  where  the  defendant  gives  bail, 
the  appearance  of  an  attorney  for  the  defendant  is  a  sufficient  appearance, 
because,  as  we  have  seen,  the  bail  so  given  is  not  mere  appearance  bail, 
but  is  special  bail  or  bail  to  the  action  ;  and  if  the  defendant  does  not  give 
bail  and  is  imprisoned,  that  itself  is  sufficient,  and  he  must  not  be  proceed- 
ed against  as  a  defendant  who  has  not  appeared,  but  may  enter  his  appear- 
ance in  custody.     1  R.  C.  ch.  128,  §  29. 

Before  we  proceed,  however,  it  is  proper  here  to  remark  the  peculiar 
character  of  the  undertaking  in  the  action  of  detinue.  The  form  of  that 
undertaking  may  be  seen  by  reference  to  the  Sess.  Acts,  1825,  ch.  22,  §  5. 
The  substance  of  it  is,  that  the  defendant  will  satisfy  the  condemnation  of 
the  court  by  restoring  the  property  or  paying  the  value  with  the  damages 
and  costs,  or  that  the  defendant  will  render  his  body  to  prison  in  execution 
for  the  same,  or  that  the  bail  will  do  it  for  him.  From  this  phraseology  it 
would  seem  that  the  bail  was  no  farther  bound  than  to  see  that  the  defen- 
dant either  satisfied  the  judgment  or  rendered  his  body  to  prison,  and  that 
either  would  discharge  him  ;  but  by  the  following  section  it  is  expressly  pro- 
vided that  the  surrender  of  the  body  of  the  defendant  by  the  bail  in  an  ac- 
tion of  detinue  shall  only  discharge  him  from  the  payment  of  the  alternative 
value  and  damages  and  costs,  and  shall  not  discharge  him  from  the  obliga- 
tion to  deliver  the  specific  thing,  unless  the  distringas  for  the  specific  thing 
be  superseded  by  the  order  of  the  court.  For  the  relief  of  the  bail,  howev- 
er, the  same  act  farther  provides  that  at  any  time  after  judgment  the  bail 
may  take  possession  of  the  specific  property  recovered,  and  deliver  it  to  the 
plaintiff;  provided  it  be  so  delivered  before  the  distringas  is  superseded  for 
the  specific  thing,  and  also  before  the  time  in  which  the  bail  may  exonerate 
himself  by  a  surrender  of  the  principal.  Before  judgment  a  court  of  chan- 
cery is  authorized  to  protect  the  bail  against  any  danger  apprehended  from 
the  sale,  removal,  or  concealment  of  the  property.  Sess.  Acts,  1825,  ch. 
22,  §  7,  8,  9. 

If  the  original  capias  or  first  process  is  not  executed,  then  the  ulterior 
steps  of  the  plaintiff  depend  upon  the  return  of  the  sheriff. 

1.  If  the  sheriff  returns  that  the  defendant  is  no  inhabitant  of  his  county 
or  corporation,  the  writ  shall  abate  and  be  dismissed  if  the  court  has  juris- 
diction over  such  county  or  corporation  only.  1  R.  C.  ch.  128,  §  60,  ch. 
78,  §  18.  But  this  provision  does  not  affect  or  repeal  that  part  of  the  41st 
section,  which  in  the  case  of  joint  defendants  authorizes  a  suit  in  the  coun- 
ty where  either  resides,  and  further  directs  process  from  the  same  court  to 
issue  and  be  served  even  on  the  non-resident  defendant  if  he  be  found 
therein. 

2.  If  the  defendant  is  returned  not  found,  the  plaintiff  may  either  sue 
out  an  rilias  or  ^pluries  until  the  defendant  shall  be  arrested,  or  a  testatum 


CHAP.  14.]  PROCEEDINGS  IN  SUITS.  237 

capias  where  the  defendant  shall  have  gone  into  another  county  or  corpor- 
ation;  or  he  may  sue  out  an  attachment  against  the  defendant's  estate  to 
enforce  an  appearance.  1  R.  C.  ch.  128,  §01.  Before  speaking  of  these 
in  their  order,  it  behooves  us  to  observe,  that  no  officer  is  authorized  to  re- 
turn no7i  est  inventus  unless  he  shall  have  actually  been  at  the  dwelling  house 
or  place  of  abode  of  the  defendant,  and  not  finding  him,  shall  have  left 
there  an  attested  copy  of  the  writ  or  process  ;  and  where  the  defendant  is 
a  known  inhabitant  of  any  county  and  not  of  the  county  of  such  officer, 
he  is  bound  to  return  the  truth  of  the  case.  1  R.  C.  ch.  78,  §  18.  A  she- 
riff", therefore,  cannot  return  non  est  inventus  as  to  an  inhabitant  of  another 
county.  If  he  do,  it  is  a  false  return,  and  he  is  punishable.  Having  pre- 
mised thus  much,  we  proceed  with  the  process. 

3.  Upon  the  return  of  the  non  est  inventus  the  plaintiff"  may  sue  out  an 
alias  capias,  which  is  like  the  capias,  except  that  after  the  words  "  we  com- 
mand you,"  are  inserted  these  words,  "  as  at  another  time  you  have  been 
commanded ;"  and  if  this  is  in  like  manner  returned,  a  j)Iuries  may  issue, 
which  's  like  the  alias,  except  that  instead  of  the  words  "  at  another  time," 
the  words  "as  more  than  once"  are  used.  See  3  Black.  Com.  App.  xv. 
for  the  form.  If  the  pluries  be  returned  non  est  inventus,  the  court  orders  a 
proclamation  against  the  defendant,  warning  him  to  appear  on  a  certain 
day,  or  that  judgment  will  be  rendered  against  him  ;  which  proclamation 
must  be  published  three  successive  couri  days  (i.  e.  as  I  understand  it,  of 
three  successive  courts,)  at  the  door  of  the  courthouse  of  the  county  or  cor- 
poration to  which  the  last  process  was  directed,  and  also  three  times  in 
some  public  newspaper  ;  and  if  the  defendant  fails  to  appear,  the  same  pro- 
ceedings are  had  as  in  other  cases  of  default.     1  R.  C.  ch.  128,  §  64. 

4.  If  the  defendant  has  gone  to  another  county,  a  testatum  capias  may 
issue  to  that  county.  This  1  understand  to  apply  only  to  the  case  of  a  de- 
fendant who  has  left  the  county  of  his  residence,  in  which  the  suit  is  brought. 
The  testatum  capias  is  directed  to  the  sheriff  of  the  county  to  which  he  has 
gone,  commanding  him  to  take  the  defendant  if  he  be  found  in  his  baili- 
wick, and  reciting  that  a  non  est  inventus  has  been  returned,  and  that  it  is 
testified  that  the  defendant  is  lurking  and  wandering  about  his  county. 

5.  The  plaintiff,  where  he  cannot  get  his  process  served  on  the  defen- 
dant, and  a  non  est  inventus  is  returned,  may,  if  he  prefers  it,  instead  of  an 
alias  or  pluries  or  testatum  capias,  sue  out  an  attachment  against  the  de- 
fendant's estate  to  compel  an  appearance.  If  the  defendant  desires  to  re- 
lease his  effects,  he  may  do  so  by  entering  his  appearance  and  giving  spe- 
cial bail  in  case  he  shall  be  ruled  so  to  do,  but  if  he  does  not,  the  plaintiff 
may  file  his  declaration  and  proceed  to  final  judgment  as  if  the  defendant 
had  been  arrested,  and  the  goods  attached  may  be  sold  as  goods  taken  on 
a.  fieri  facias.  1  R.  C.  ch.  128,  §  61.  From  these  provisions  it  is  obvious 
the  attaching  officer  should,  if  it  be  in  his  power,  attach  enough  to  satisfy 
the  debt.  A  failure  to  do  so  might  render  him  liable,  in  the  event  of  the 
defendant's  eloigning  his  property  before  they  could  be  reached  by  execu- 
tion. 

6.  If  the  sheriff  returns  that  he  is  kept  off  by  force  of  arms,  the  plaintiff 
may  either  sue  out  an  alias  or  pluries,  as  the  case  may  be,  or  proceed  in 
his  suit  as  if  the  process  had  been  executed. 

Having  offered  to  the  student  this  concise  view  of  the  mode  of  proceed- 
ing to  compel  the  appearance  of  the  defendant,  I  proceed  to  remark,  that 
in  those  cases  where  bail  is  required,  if  the  officer  serving  the  writ  should 
discharge  the  defendant  without  bail,  or  should  not  return  the  recognizance 
of  bail  to  the  office  with  the  writ,  he  is  regarded  as  special  bail;  and  if  he 
prove  insufficient,  then  he  and  his  securities  are  liable  to  an  action  on  their 
official  bond.     But  it  must  be  observed  that  the  high  sheriff  and  not  the  de- 


238  PROCEEDINGS  IN  SUITS.  {  book  3. 

puty  is  the  person  who  is  thus  to  be  looked  upon  as  bail,  and  proceeded 
ao-ainst  as  such,  though  the  omission  may  have  been  by  his  deputy.  [See 
1  Wash.  159,  325.  Though  decided  under  the  former  law,  the  principle, 
it  is  presumed,  applies  to  the  present  act.]  So,  too,  if  the  bail  taken  be  in- 
sufficient at  the  time  of  taking  him  as  such,  the  officer  taking  it  is  consid- 
ered bound  with  the  bail,  and  liable  in  the  same  manner  as  if  lie  had  joined 
in  the  recognizance,  and  if  he  should  be  insufficient  his  securities  are  liable 
to  an  action  on  the  official  bond.  But  the  sufficiency  or  insufficiency  of  the 
bail  is  a  matter  to  be  determined  by  the  court  before  which  the  cause  is  de- 
pending; and  the  objection  or  exception  may  be  made  by  the  plaintiff  at 
any  time  before  the  trial  of  the  cause.  13ut  if  the  bail  be  good  at  the  lime 
the  recognizance  is  entered  into,  the  sheriff  is  absolved,  though  he  become 
insolvent  afterwards.  So  if  after  the  return  day  of  the  writ  the  defendant 
procures  bail  to  be  taken  before  a  justice  of  peace,  and  the  bail  even  at  that 
time  should  be  insolvent,  the  justice  taking  it  is  not  liable.  Yet  in  either 
case  the  plaintiff  may  at  any  tune  before  trial  except  to  the  sufficiency,  and 
if  the  exception  be  sustained,  the  court  may  rule  the  defendant  to  give  other 
special  bail,  and  if  he  fails  to  do  so  within  the  time  appointed,  they  may 
refuse  him  permiseion  to  plead,  or  set  aside  his  plea,  and  award  a  writ  of 
inquiry,  or  proceed  to  judgment,  or  cause  him  to  be  arrested  and  commit- 
ted to  prison.  These  provisions  have  very  much  simplified  the  proceed- 
ings in  our  courts,  and  have  relieved  the  profession  from  many  knotty  queS' 
tions  which  arose  under  former  laws. 

Having  thus  laid  before  the  student  the  mode  of  proceeding  to  bring  the 
defendant  before  the  court  to  answer  to  the  demand  of  the  plaintiff,  I  pro- 
ceed to  remark  on  the  consequences  to  the  defendant  if  he  fails  to  appear. 
These  are  the  same  whether  bail  be  demanded  upon  the  writ  or  not,  and 
whether  the  defendant  has  given  bail  or  is  committed  to  prison.  In  either 
of  these  cases,  if  he  fails  to  enter  his  appearance  at  the  rules  in  the  clerk's 
office,  the  plaintiiff  may  enter  a  rule  commonly  called  a  conditional  order 
against  him  for  his  default.  This  common  order,  which  is  in  effect  a  con- 
ditional judgment,  is  entered  in  a  rule  book  kept  by  the  clerk  for  that  pur- 
pose. The  terms  of  it  are,  that  unless  the  defendant  shall  appear  at  the 
rules  in  the  clerk's  office  on  the  next  rule  day  (which  is  always  one  month 
after)  judgment  will  be  entered  up  against  him  for  want  of  appearance.  If 
this  order  be  not  complied  with  at  the  next  rule  day  by  the  defendant's  ap- 
pearing according  to  its  requisitions,  it  then  stands  confirmed,  and  thereup- 
on what  is  called  an  office  judgment  is  entered  up  by  the  clerk  in  his  office, 
for  the  debt  or  other  specific  thing  demanded,  unless  the  plaintiff,  conceiv- 
ing himself  entitled  to  damages,  chooses  to  have  a  writ  of  inquiry  to  ascer- 
tain them ;  or  unless  the  action  sounds  merely  in  damages,  or  the  demand 
is  for  an  uncertain  sum,  in  which  cases  a  writ  of  inquiry  is  awarded  of 
course.  This  writ  of  inquiry  is  in  form  an  order  to  summon  a  jury  to  in- 
quire of  the  damages  or  amount  of  the  demand,  which  cannot  be  done  in 
the  office,  but  must  be  done  under  the  superintendence  of  the  court  itself. 

A  writ  of  incjuiry  is  necessary  in  all  cases  where  the  action  sounds  in 
damages,  whether  the  judgment  be  in  the  office  or  by  the  Cdurt  upon  de- 
murrer. See  Post.  271,  316.  And  so  even  in  debt,  for  money  lent,  not 
alleged  to  be  founded  on  specialty  or  note.  G  Mun.  454.  And  though 
not  generally  necessary  in  actions  on  specialties,  as  is  stated  hereafter,  yet 
if  there  be  judgment  by  default  on  an  instrument  on  which  credits  are  en- 
dorsed, the  plaintiff  must  either  admit  the  credits  or  take  a  writ  of  inquiry  ; 
for  the  clerk  is  bound  to  notice  the  credits,  if  the  judgment  is  by  default 
and  there  is  no  ascertainment  of  them  by  verdict  on  a  writ  of  inquiry.  Sec 
5  Ran.  326.  Judgments  by  default  obtained  in  the  office  for  want  of  ap- 
pearance, or  bail,  or  plea,  in  which  no  writ  of  inquiry  shall  be  awarded,  and 


CHAP.  14.]  PROCEEDINGS  IN  SXJITS.  239 

which  shall  not  be  set  aside  at  the  next  succeeding  court,  and  all  nonsuits 
and  dismissions  at  rules  not  so  set  aside,  shall  be  considered  as  final  judg- 
ments as  of  the  last  day  of  the  term,  and  executions  may  issue  thereon  ac- 
cordingly, (1  R.  C.  ch.  128,  §  79,)  and  the  clerk  should  enter  the  judgment 
as  of  the  last  day  of  the  term  succeeding  the  office  judgment.  If  he  fails 
to  do  so,  however,  it  is  a  clerical  misprision  only,  and  amendable.  1  Mub. 
56.  And  in  an  action  of  debt  upon  such  judgment,  if  the  entry  has  not 
been  made,  and  the  judgment  be  declared  on  as  of  that  term,  the  variance 
is  immaterial ;  ibid  ;  otherwise  when  the  declaration  neither  averred  a  con- 
firmation of  tho  office  judgment,  nor  shewed  that  the  term  was  past  before 
suit  brought.     3  Mun.  119. 

The  judgment  entered  in  the  office,  if  not  set  aside  at  the  next  term,  is 
always  final  in  actions  of  debt  on  bonds  or  single  bills,  or  other  writing  for 
payment  of  money  ;  for  as  by  law  the  clerk  must  issue  the  execution  on  all 
such  instruments  of  interest  as  well  as  principal,  the  damages  are  nominal, 
viz.  one  cent,  and  a  writ  of  inquiry  is  therefore  not  necessary  ;  except,  in- 
deed, where  from  the  long  time  the  borvd  with  condition  to  pay  money  has 
been  running  on  interest,  it  is  necessary  to  find  damages  to  cover  the  ex- 
cess of  interest  above  the  penalty. 

But  though  the  judgment  in  the  offi.ce  will  be  confirmed  and  final  if  not 
set  aside  at  the  next  term,  yet  the  defendant  may  then  set  it  aside  on  his  en- 
tering his  appearance,  and  pleading  some  issuable  plea  ;  by  which  is  mean* 
a  plea  in  bar  of  the  action  and  not  a  plea  in  abatement  or  other  dilatory 
plea.  See  1  Wash.  27.  Moreover,  when  bail  is  not  demanded  on  the 
writ,  the  court  may  require,  for  good  cause  shewn,  the  defendant  to  give 
bail  to  the  action  as  a  prerequisite  to  his  appearing  and  pleading  to  issue, 
and  unless  it  be  given,  the  office  judgment  will  stand  coafirmed,  and  on  the 
rising  of  the  court  execution  may  issue. 

In  all  actions  in  which  a  writ  of  inquiry  is  awarded,  the  office  judgment 
may  be  set  aside  at  any  time  before  it  is  executed  ;  although  the  law  says, 
"at  the  succeeding  term."  6 Wheat. 477.  See  1  Cranch,  177,  where  it  is 
said  to  be  a  matter  of  discretion  at  any  future  term  to  permit  the  filing  of  a 
special  plea.  I  think  this  is  a  misconception  of  the  Virginia  practice,  for  a 
special  plea  goes  as  much  to  the  merits  as  the  general  issue.  The  distinc- 
tion is  this,  I  conceive  : — that  after  the  office  judgment  court,  the  defendant 
v/ill  not  be  permitted  to  file  a  plea  which  will  delay  the  cause  except  at  the 
court's  discretion.  See  1  Gilmer,  1,  7.  But  though  the  writ  of  inquiry  be 
not  set  aside,  the  defendant  may,  I  con-ceive,  introduce  evidence  on  the 
question  of  the  amount  of  damages,,  though  he  cannot,  without  setting  aside 
the  judgment,  contest  his  title  to  some  damages.  This,  however,  rarely 
occurs,  as  in  all  cases  it  is  better  for  the  defertdant  to  set  aside  the  writ  of 
inquiry  so  as  to  be  let  into  a  full  defence. 

I  have  said  that  the  office  judgment  may  be  set  aside  upon  the  defen- 
dant's pleading  some  issuable  plea.  The  practice  of  the  old  general  court 
was  very  liberal  in  permitting  the  defendant  to  plead  even  a  plea  which  did 
not'make  or  tender  an  issue,  provided  the  justice  of  the  case  was  thereby 
promoted,  and  the  object  of  the  party  did  not  appear  to  be  delay.  1  Wash. 
27. 

A  plea  in  abatement  is  not  an  issuable  plea  within  the  meaning  of  this 
act,  nor  admissible  to  set  aside  an  office  judgment.  2  Call,  63,  67.  1 
Mun.  285.  Unless  the  abateable  matter  has  arisen  puis  darrein  continuance. 
2  Call,  49. 

But  a  general  demurrer  is  an  issuable  plea,  and  ought  to  be  admitted  to- 
set  aside  an  office  judgment.  4  H.  &  M.  477.  So  is  the  statute  of  limi- 
tations. 1  Gil.  1,  7.  And  though  the  office  judgment  was  set  aside  by 
the  plea  of  non-assumpsit  only,  and  the  application  was  to  add  the  plea  of 


240  PROCEEDINGS  IN  SUITS.  [  BOOK  3. 

the  statute  of  limitations,  liberty  to  do  so  was  not  denied  where  the  appli- 
cation was  not  unreasonably  delayed.     Ibid. 

I  shall  here  terminate  this  sketch  with  some  remarks  as  to  the  proceed- 
ings against  the  special  bail. 

The  person  taking  special  bail  shall  at  the  same  time,  if  required,  deliv- 
er to  the  person  or  persons  entering  into  a  recognizance  of  special  bail, 
a  bail  piece  in  substance  stating  that  the  defendant  is  delivered  to  bail  on  a 
cepi  corpus.  'Tis  always  safe  to  require  this  bail  piece,  [3  Mun.  119,]  for 
it  is  not  only  the  authority  or  warrant  of  the  bail  to  take  his  principal,  but 
it  is  the  evidence  to  the  sheriff  of  the  bail's  right  to  surrender,  and  of  his 
own  rio-ht  and  duty  to  commit  the  defendant.  For  the  authority  of  the 
bail  to  take  his  principal,  see  7  John.  R.  145.  He  has  a  right  to  take  him 
into  custody,  and  deliver  him  over  to  the  sheriff  in  discharge  of  his  under- 
taking. 

"Every  special  bail  may  surrender  the  principal  before  the  court  where 
the  suit  hath  been  or  shall  be  depending  at  any  time  before  the  appearance 
day  of  the  first  scire  facias  returned  executed  or  of  the  second  returned 
nihil."     1  R.  C.  ch.  US,  §  54. 

It  will  be  remembered  that  the  undertaking  of  the  special  bail  in  his  re- 
cognizance is,  that  the  defendant  shall  pay  and  satisfy  the  condemnation  of 
the  court  or  render  his  body  in  execution  for  the  same,  or  that  the  bail  will 
do  it  for  him  ;  i.  e.  will  either  surrender  the  defendant  in  custody  or  will 
pay  the  debt  himself.  To  absolve  himself,  therefore,  from  this  liability, 
which  may  in  the  event  of  the  principal's  absconding  make  him  liable  for 
the  debt  itself,  the  law  permits  him  at  any  time  before  judgment  [and  even 
after  judgment  within  the  above  mentioned  time]  to  take  the  bail  by  virtue 
of  his  bail  piece  and  surrender  him  in  custody.  This  surrender  may  either 
be  to  the  court,  in  which  case  the  court  orders  the  defendant  to  be  com- 
mitted to  the  custody  of  the  sheriff  or  jailor,  if  the  jtlaintijf  or  his  attorney 
desire  it;  or  it  may  be  made  to  the  sheriff,  sergeant,  or  jailor  of  the  county 
or  corporation  where  the  original  writ  was  served,  who  are  bound  to  give 
a  receipt  for  the  defendant's  body  and  commit  him  to  jail.  This  receipt  is 
to  be  transmitted  to  the  clerk  of  the  court,  and  the  bail  must  give  notice 
forthwith  to  the  plaintiff,  his  agent  or  attorney  at  law,  if  to  be  found  in  the 
county  or  corporation.  By  such  surrender  the  bail  is  discharged.  When 
the  surrender  after  judgment  shall  be  made  to  the  officer,  he  shall  keep  the 
defendant  in  his  custody  (as  if  he  had  been  taken  on  a  casa)  for  twenty 
days,  unless  the  creditor  sooner  consents  to  his  discharge,  and  if  within 
twenty  days  the  creditor  does  not  in  writing  charge  the  debtor  in  execu- 
tion, he  shall  be  discharged,  but  in  that  case  is  subject  to  be  taken  upon  any 
future  execution  upon  the  same  judgment.     1  R.  C.  ch.  128,  §  54. 

The  defendant,  we  have  seen,  is  upon  the  surrender  by  the  bail  committed 
to  custody.  If  the  surrender  be  before  judgment,  he  may  at  any  time  be- 
fore the  judgment  again  be  liberated  upon  giving  other  special  bail.  1  R. 
C.  ch.  128,  §  57.  But  if  he  be  in  custody  at  the  time  of  the  judgment  he 
cannot  afterwards  give  bail :  and  if  he  should  be  discharged  (after  judg- 
ment and  surrender)  upon  giving  bail,  it  would  be  an  escape  and  the  officer 
would  be  liable  for  the  debt. 

Besides  the  provisions  above  mentioned,  there  are  also  other  necessary 
provisions  where  the  defendant  being  already  in  jail  on  other  process,  or  in 
the  penitentiary,  the  bail  desires  to  surrender  him  and  discharge  himself. 
See  for  these  1  R.  C.  ch.  128,  §  55,  58.  As  to  the  manner  of  obtaining  an 
exoneretur,  see  sect.  5G. 

I  proceed  next  to  shew  the  course  of  proceeding  where  the  creditor 
finds  it  necessary  to  pursue  the  bail  and  make  him  discharge  the  debt  or 
demand. 


CHAP.  14.]  PROCEEDINGS  IN  SUITS.  241 

Upon  obtaining  his  judgment,  the  creditor  who  [seeing  no  hopes  of 
making  the  amount  of  his  demand  out  of  the  defendant  by  an  execution 
against  his  goods  and  chattels]  desires  to  take  measures  for  charging  the 
bail,  issues  his  capias  ad  satisfaciendum,  or  casa  as  it  is  usually  called,  di- 
rected to  the  proper  officer,  and  commanding  him  to  take  the  body  of  the 
defendant  to  satisfy  the  demand,  &c.  If  the  defendant  is  taken  on  this 
writ  or  execution,  the  bail  is  discharged.  But  if  he  cannot  be  taken,  and 
the  sheriff  returns  the  casa  not  found,  the  creditor  proceeds  to  issue  his 
scire  facias  against  the  bail,  which  is  a  writ  directed  to  the  sheriff  com- 
manding him  to  summon  the  defendant  to  appear  on  a  certain  day  named 
in  the  writ,  to  shew  cause,  if  any  he  can,  why  judgment  on  his  recogni- 
zance should  not  be  entered  up  against  him  for  the  demand  of  the  plaintiff.* 
The  bail  may,  even  after  the  issuing  of  the  first  scire  facias,  surrender  the 
principal,  if  he  can  catch  him,  provided  he  does  it  before  that  scire  facias 
is  returned  executed.  Or,  if  the  first  scire  facias  should  not  be  executed, 
or  should  be  returned  nihil,  (i.  e.  nothing  whereby  the  bail  can  be  summon- 
ed,) the  surrender  may  be  made  at  any  time  before  a  second  scire  facias 
shall  be  returned  executed  or  returned  nihil :  but  not  afterwards.  Yet  as  in 
strictness  the  bail  was  bound  that  the  principal  should  be  taken  upon  the 
casa,  and  as  the  discharge  upon  his  surrender  afterwards  is  but  matter  of 
favor,  the  costs  in  such  cases  are  adjudged  against  him.  1  R.  C.  ch.  128, 
§  54.  And  if  no  such  surrender  is  made,  then  judgment  is  rendered  against 
him  on  the  scire  facias  for  the  amount  of  the  original  judgment  against  the 
defendant  for  whom  he  was  bail. 

Where  a  scire  facias  was  made  returnable  to  an  improper  term,  it  was 
considered  merely  void  and  quashed.  2  Wash.  213.  Formerly  the  scire 
facias  was  returnable  to  the  court.  Now  it  is  returnable  at  the  option  of 
the  plaintiff,  either  to  the  first  day  of  the  next  succeeding  term,  or  in  the 
clerk's  office  on  some  previous  rule  day.  1  R.  C.  ch.  128,  §  70.  And  it 
may  be  executed  at  any  time  before  the  return  day  is  passed. 

We  have  said  that  at  any  time  before  a  scire  facias  has  been  returned 
executed,  or  two  have  been  returned  nihil,  the  bail  may  discharge  himself. 
But  the  return  of  "no  inhabitant,"  or  of  "not  found,"  is  not  a  suffi- 
cient return  of  "  nihil."  The  return  should  be  that  the  defendant  to  the 
scire  facias  (the  bail)  had  nothing  in  his  (the  sheriif's)  bailiwick  by  which 
he  could  be  summoned.     5  Mun.  407.     Sed  vide  1  R.  C.  ch.  128,  §  66,  67. 

Where  bail  is  bound  for  two  defendants,  and  after  judgment  duly  surren- 
ders one,  who  is  not  charged  in  execution,  but  is  discharged  by  the  plaintifTs 
order,  this  is  no  satisfaction  of  the  judgment,  nor  does  it  exempt  the  bail 
from  the  necessity  of  surrendering  the  other.  4  Mun.  516.  If  he  had 
been  charged  in  execution  and  then  discharged,  it  would  have  been  other- 
wise. 

To  the  account  we  have  given  of  the  proceedings  in  the  prosecution  of 
actions,  it  is  proper  to  add  that  in  actions  against  the  governor,  privy  coun- 
cillors, judges,  and  sheriffs,  instead  of  the  capias  a  summons  issues,  which 
must  be  served  ten  days  before  the  return  day,  and  thereupon  the  cause 
proceeds  as  upon  a  capias  executed.     1  R.  C.  ch.  128,  §  68. 

There  is  another  mode  of  commencing  a  suit  where  a  debtor  attempts  to 
remove  himself  privately  out  of  the  county  or  corporation,  or  absconds  or 
conceals  himself  so  that  the  ordinary  process  of  law  cannot  be  sued  out 
against  him,  which  is  by  suing  out  a  warrant  of  attachment.  This  is  done 
upon  complaint  made  to  a  justice  of  the  peace,  who  is  in  such  case  autho- 
rised to  grant  such  warrant ;  and  being  a  special  remedy  adapted  to  the 
emergency  of  the  case,  it  may  be  issued  and  even  executed  on  a  Sunday, 

*  How  the  scire  facias  may  be  executed  see  1 K.  C.  ch.  123,  §  C6, 67.    See  also  acts  of  IC^i.*,  ch.  37, 
*5  3,  as  to  notices  to  absent  paitiep. 

VOL.  2—31 


242  PROCEEDINGS  IN  SUITS.  [  book  3. 

provided  the  debtor  be  actually  moving  or  absconding  on  that  day  ;  which 
is  a  proceeding  not  authorised  in  any  other  civil  case  except  upon  escapes 
out  of  prison  or  custody.  This  warrant  may  be  levied  upon  any  personal 
property  of  the  party  absconding,  wherever  found;  or  it  may  be  served  up- 
on any  person  indebted  to,  or  having  any  effects  of,  the  party  absconding 
in  his  possession,  who  is  then  called  a  garnishee,  and  is  thereupon  compel- 
lable to  appear  at  the  next  court,  and  answer  upon  oath  what  he  is  indebt- 
ed to,  or  what  effects  he  hath  in  his  hands  of  the  party  absconding.  And 
if  the  party  absconding  shall  not  replevy  the  attachment,  which  he  may  do 
by  giving  sufficient  security  to  the  sheriff  for  his  appearance,  or  by  putting 
in  bail  to  the  action,  if  ruled  thereto  by  the  court,  the  plaintiff  shall  have 
judgment  for  the  whole  debt,  and  the  goods  attached  shall  be  sold  ;  and  in 
case  there  be  a  garnishee,  and  judgment  be  rendered  against  him,  the  plain- 
tiff shall  have  execution  against  him  for  the  amount  thereof;  and  in  both 
cases  he  may  have  execution  against  the  defendant's  estate,  or  his  person, 
if  he  can  be  found,  for  any  balance  that  may  remain  due.  But  before  any 
person  can  be  entitled  to  this  extraordinary  course  of  proceeding,  he  must 
enter  into  bond  with  security  in  double  the  sum  to  be  attached,  payable  to 
the  defendant,  with  condition  to  satisfy  all  costs,  and  also  all  damages 
which  may  be  recovered  against  him  for  suing  out  the  attachment,  in  case 
he  shall  be  cast  in  his  suit.  This  bond  is  to  be  taken  by  the  justice  issuing 
the  attachment,  and  is  to  be  returned  to  the  next  court  of  the  county  or 
corporation,  otherwise  the  attachment  is  void  :  and  the  defendant  will  be 
entitled  to  such  damages  as  he  can  prove  that  he  hath  sustained  by  the 
plaintifTs  vexatious  proceeding.     See  1  R.  C.  ch.  123,  §  1. 

In  the  same  act  there  are  also  provisions  enablintr  third  persons  who  may 
lay  claim  to  the  attached  effects  to  assert  their  rights  by  interpleading.  § 
i^,  16.  And  sundry  clauses  provide  for  the  recovery  and  security  of  small 
debts  by  attachment,  in  case  of  debtors  removing,  or  intending  to  remove ; 
to  all  v.hich  I  must  content  myself  with  referring  the  student :  as  also  to 
the  following  cases  :  3  Call,  413.  455.  2  H.  Sc  M.  308.  6  3fun.  5S5.  1 
6ilm.  34,  142.  1  Wash.  74.  2  H.  &,  M.  48,  from  which  it  will,  among 
other  things,  appear,  that  this  act  being  an  innovation  upon  the  common 
law,  must  be  strictly  construed  and  the  remedy  strictly  pursued  :  and  the 
rather  as  it  is  violent  and  harsh,  and  directed  against  those  who  are  usually 
both  distressed  and  friendless. 

Lastly.  Before  we  terminate  our  view  of  the  mode  of  proceeding  in  the 
prosecution  of  actions  in  Virginia,  we  must  advert  to  certain  summary  pro- 
ceedings, which  are  authorised  by  our  laws  in  certain  cases,  deemed  by  the 
legislature  particularly  entitled  to  speedy  redress.  Such  are  the  cases  of 
demands  of  securities  against  their  principal  or  co-securities  ;  plaintiffs 
against  sheriffs  who  fail  to  pay  money.s  received  by  them  ;  clients  against 
their  attorneys  for  money  collected  ;  clerks  and  other  officers  against  she- 
riffs who  have  collected  and  failed  to  accounts  for  their  fees ;  overseers  of 
the  poor  against  the  same  officers  for  poor  rates,  and  the  commonwealth  for 
taxes;  high  sheriffs  against  their  deputies;  and  motions  on  delivery  or 
forthcoming  bonds,  and  on  replevy  bonds  for  rent.  In  these  (and  perhaps 
in  other  cases  which  may  have  escaped  me)  a  remedy  is  given  by  motion 
upon  ten  days'  notice,  and  judgment  is  thereupon  rendered  in  favor  of  the 
party  for  his  demand,  upon  which  judgment  he  may  issue  execution  as  in- 
other  cases.  See  1  R.  C.  ch.  116,  as  to  securities  :  ch.  76,  §  9,  as  to  attor- 
neys :  ch.  70;  as  to  sheriffs:. 


CHAP.  15.]  OF  PLEADINX3.  243 

CHAPTER  XV. 

OF  PLEADING. 

"  Pleadings  are  the  mutual  altercations  between  the  plaintiff  and  defen- 
dant ;  which  at  present  are  set  down  and  delivered  into  the  proper  oflice  in 
writing,  though  formerly  they  were  usually  put  in  by  their  counsel  ore  tenus, 
or  viva  voce,  in  court,  and  then  minuted  down  by  the  chief  clerks,  or  pro- 
tlionotaries ;  whence  in  our  old  law  French  the  pleadings  arc  frequently 
denominated  the  parol." 

Courts  of  justice  having  been  instituted  for  the  purpose  of  adjusting  dis- 
putes between  members  of  the  community,  the  first  step  towards  the  ac- 
complishment of  their  object  is  to  call  upon  the  parties  to  exhibit  their 
complaint  and  their  defence,  or  in  common  parlance,  to  tell  their  respective 
stories.  The  inartificial  mode  in  which  litigants  would  themselves  do  this, 
would  contribute  little  to  the  purposes  of  justice.  Hence  certain  rules 
have  been  adopted  to  effect  its  ends.  In  order  that  each  party  may  dis- 
tinctly be  informed  of  what  is  alleged  by  his  adversary,  the  plaintiff  is  called 
on  to  set  forth  his  charge  distinctly,  and  the  defendant  is  required  to  state 
with  equal  precision  the  ground  of  his  defence. 

That  the  vexation  of  perpetually  changing  the  grounds  of  attack  and  de- 
fence may  he  avoided,  the  pleadings  are  required  to  be  in  writing,  so  that 
no  difference  can  exist  as  to  what  has  been  really  alleged  by  the  parties  re- 
spectively. 

Moreover  the  introduction  of  extraneous -matter  is  re^probated,  since  that 
is  always  calculated  to  embarrass  and  confound.  Hence,  instead  of  inar- 
tificial detail,  the  law  is  rigorous  in  confining  the  parties  to  a  succinct  and 
precise  statement  of  the  facts  upon  which  they  respectively  rely,  omitting 
nothing  which  is  essential  to  their  case,  and  clogging  the  pleadings  witE 
nothing  impertinent  or  irrelevant. 

In  short,  the  system  of  special  pleading  is  a  sound  and  beautiful  system 
■of  logic.  Wo  all  have  experienced  that  a  person  in  the  wrong,  in  main- 
taining his  case  is  apt  to  shift  his  ground  as  he  is  pressed — to  deny  at  one 
moment  the  facts  alleged  by  his  adversary,  and  in  the  next  his  inferences 
from  those  facts,  and  to  throw  into  his  argument  a  thousand  irrelevant  mat- 
^ters  calculated  to  obscure  the  truth,  and  to  hide  the  real  character  of  the 
/transaction  from  the  eye  of  his  judge.  It  is  the  province  of  special  plead-.- 
-ing  to  remedy  this.  Its  object  is  to  compel  each  party  to  make  a  distinct 
and  complete,  but  unvarnished  statement  of  his  case.  Does  the  plaintiff 
set  forth  his  statement  imperlectly,  so  as  that  a  cause  of  action  docs  not 
distinctly  appear?  The  deicndant  may  demur,  and  either  compel  him  to 
be  more  specific,  or  to  renounce  his  action  because  he  is  unable  to  be  so. 
J3oes  he  fill  his  declaration  with  irrelevant  matter  calculated  to  confound 
the  plain  and  simple  jury  who  are  to  try  the  case  ?  The  defendant  may  de- 
mur for  that  cause,  and  compel  him  to  strike  it  out.  Does  he  altogether 
■omit  any  averment  or  allegation  which  forms  an  essential  ingredient  in  hia 
case  ?  The  defendant  may  demur,  or  arrest  the  judgment  on  the  verdict  if 
he  obtains  one.  On  the  other  hand,  the  defendant  must  not  prevaricate. 
His  plea  must  be  a  direct  answer  to  the  declaration,  and  must  offer  some 
single  ground  of  defence.  He  either  pleads  and  denies  the  plaintiflT's  facts, 
or,  admitting  them,  he  demurs  and  denies  that  they  give  him  a  right  of  ac- 
tion. But  each  of  these  grounds  of  defence  must  be  kept  distinct  from  the 
other;  and  indeed,  at  common  law,  both  could  not  be  resorted  to,  even 
though  they  were  kept  distinct.  For  it  is  illogical  and  calculated  to  con- 
found the  truth,  for  a  party  to  mingle  matters  essentially  independent  of 
?each  other.     No  investigation  can  be  properly  conducted  unless  one  thing 


244  OF  PLEADING.  [  BOOK  3. 

only  is  examined  at  a  lime.  Ifcnce  duplicity  in  pleading  (or  the  setting  up 
two  distinct  matters  of  diifence  in  the  same  plea)  is  decidedly  reprobated, 
and  where  this  fault  is  committed  the  plaintifl*  may  demur  to  the  plea  of  the 
defendant. 

The  system  of  special  pleading  is  thus  designed  to  compel  the  parties  (if 
I  may  so  speak)  to  argue  fairly,  and  to  throw  ofT  all  extrinsic  matter,  and 
bring  their  dispute,  or  each  matter  of  it  at  least,  to  some  one  determinate 
point  for  the  decision  of  the  court,  or  the  examination  of  the  jury.  It  has 
the  further  advantage  of  enabling  the  litigants  to  dispense  with  all  testimo- 
ny except  what  relates  to  the  very  matter  to  be  tried,  and  thus  to  avoid  the 
heaviest  expense  of  every  lawsuit.  Thus  in  an  action  of  slander,  if  the  de- 
fendant pleaded  justilication  he  could  not  also  plead  not  guilty  at  common 
law,  and  therefore  the  plaintilf  was  not  under  any  necessity  to  produce 
ivitnesscs  to  prove  the  words.  And  even  now,  though  he  is  permitted  to 
plead  both  matters  in  distinct  pleas,  yet  if  he  pleads  justification  alone,  he 
dispenses  with  proof  of  the  words,  and  thus  the  attendance  of  witnesses 
to  establish  them  is  unnecessary. 

It  must  be  confessed,  however,  that  the  common  law  was  rather  rigorous 
in  tying  down  the  defendant  to  a  single  defence;  since  it  often  happens 
that  witnesses  fail  to  establish,  from  delect  of  memory,  what  the  party  may 
reasonably  expect  to  prove,  or  they  may  swear  to  what  is  untrue.  Where 
this  is  the  case,  there  seems  no  good  reason  why,  if  the  party  has  another 
good  defence,  he  should  not  be  permitted  to  use  it,  provided  it"  is  kept  dis- 
tinct and  separate.  Thus  in  the  action  of  slander.  I  may  not  have  spok- 
en the  words  ;  yet  a  suborned  witness  may  swear  that  I  did.  Why,  then, 
if  I  can  prove  the  words  to  be  true,  shall  1  not  be  permitted  to  do  so  ?  For 
if  the  plaintiir  really  is  as  bad  as  the  words  represent  him  to  be,  he  ought 
not  to  recover.  Hence  our  law  has  provided  that  the  defendant  may  plead 
as  many  several  matters  of  defence  as  he  may  think  proper,  and  though 
they  are  inconsistent  with  each  other,  they  arc  permitted,  provided  they  are 
kept  separate  and  in  distinct  branches  of  the  pleadings. 

I  have  thought  this  short  exposition  might  tend  to  shew  to  the  student 
that  the  strictness  of  special  pleading,  so  much  complained  of,  is  really  cal- 
culated to  promote  justice  and  a  fair  trial,  rather  than  to  obstruct  it,  provid- 
ed the  counsel  on  both  sides  understand  their  business.  Ignorance  on  one 
side  and  dexterity  on  the  other,  sometimes,  indeed,  enable  the  skilful  to 
obtain  advantajjes  ;  but  no  two  accomplished  pleaders  ever  complained  that 
injustice  was  the  result  of  their  being  tied  down  rigidly  to  the  rules  of  spe- 
cial pleading.  Every  one,  indeed,  who  understands  it,  at  once  perceives 
that  it  is  a  system  of  the  most  rigorous  and  accurate  logic,  and  must  of 
course,  like  every  system  of  logic,  eminently  conduce  to  tlie  discovery  of 
the  truth. 

In  the  excellent  work  of  Mr.  Stej)hen  on  the  principles  of  pleading  in 
civil  actions,  which  cannot  be  too  strongly  recommended  to  the  student, 
and  of  which  I  shall  for  his  benefit  freely  avail  myself  in  the  following  dis- 
quisition, he  remarks,  that  as  the  object  of  all  plendi:ig  or  judicial  allegation 
is  to  ascertain  with  precision  the  subject  for  decision,  so  the  main  object  of 
the  English  system  is  to  ascertain  it  by  the  production  of  an  issue,  p.  1 15. 
The  pleadings  in  that  system  are  so  conducted  as  always  to  evolve  some 
question  of  law  or  fact  disputed  between  the  parties,  and  proposed  by  the 
one  and  accepted  by  the  other  as  the  matter  to  be  decided  between  them. 
The  question  so  produced  is  called  the  issue.  Id.  Thus  ihv  plaintifl"  in 
his  declarnlion  sets  forth  his  complaint  at  large.  The  defendant  may  deny 
that  the  tracts,  if  true,  constitute  a  ground  ot  action,  and  this  denial  leads  at 
once  to  an  issue  in  law ;  that  is,  to  the  submission  of  a  singlC;  distinct;  and 


CHAP.  15.]  OF  PLEADING.  245 

material  queslion  of  law,  decisive  of  the  rights  of  the  parties,  to  the  court, 
the  tribunal  invested  by  the  common  law  with  the  decision  of  legal  ques- 
tions ;  for  it  is  a  maxim,  ad  qumstiones  juris  respondent  judices  ad  quasli- 
ones  facti  respondent  juraiores.  The  defendant,  however,  may  deny  the 
facts  stated  in  the  declaration,  instead  of  the  effect  of  those  facts,  and  may 
thus  propose  the  truth  of  them  for  trial  :  which  trial  must  regularly  be  had 
by  the  jury  according  to  the  maxim  referred  to  ;  and  as  the  plaintiff  has 
rested  his  £ase  upon  these  facts,  he  cannot  refuse,  when  there  is  a  direct 
and  express  denial,  to  accept  this  proposition  of  the  defendant.  His  ac- 
ceptance is  declared  by  joining  issue.  The  defendant  may  not,  however, 
desire  to  deny  the  plaintiff's  allegation  altogether,  because  he  is  aware  that 
it  is  true,  and  yet  he  may  have  a  good  defence  against  his  demand.  Thus 
if  A  is  sued  for  a  debt  due  by  bond,  he  may  by  his  plea  confess  that  he  did 
make  such  a  bond,  and  avoid  the  conclusion  against  him  that  he  owes  the 
debt,  by  pleading  that  the  plaintiff  had  released  it.  This  release  could  on- 
ly be  by  deed,  which  he  must  produce  and  rely  upon.  If  the  plaintiff  does 
not  admit  that  he  made  such  a  deed,  he  may,  by  his  replication,  altogether 
deny  it,  and  propose  for  trial  the  truth  of  that  fact,  which  is  done  by  tender- 
ing an  issue;  and  as  the  defendant  has  rested  his  defence  upon  the  exis- 
tence and  validity  of  this  deed  of  release,  he  cannot  refuse  to  accept  this 
proposition  or  tender  of  issue.  He  therefore  accepts  it,  which  is  done  by 
Aj«  joining  the  issue.  But  the  plaintiff,  perhaps,  may  be  willing  to  admit 
that  he  did  execute  the  release,  and  may  confess  it,  and  avoid  the  effect  of 
it  by  alleging  that  it  was  delivered,  not  to  the  defendant  himself,  but  to  a 
third  person  as  an  escrow,  to  be  delivered  over  upon  the  defendant's  doing 
a  certain  other  act ;  e.  g.  upon  the  defendant's  making  a  good  title  to  a 
tract  of  land.  This  drives  the  defendant  to  answer  to  this  new  matter,  by 
his  rejoinder  :  in  which  he  may  take  issue  by  denying  the  delivery  as  an 
escrow  ;  or  he  may  confess  that  the  release  was  so  delivered,  and  avoid  the 
effect  of  the  admission  by  alleging  that  he  had  made  a  good  title.  If  the 
plaintiff  denies  this,  he  may  by  a  sur-rejoinder  propose  or  tender  an  issue 
upon  that  fact,  and  the  issue  so  tendered  must  be  joined  by  the  defendant, 
since  he  has  at  length,  by  his  rejoinder,  rested  his  case  upon  that  point. 
Thus  the  pleadings  may  be  carried  through  the  various  stages  of  pleas,  re- 
plications, rejoinders,  sur-rejoinders,  rebutters,  and  sur-rebutters,  and  even 
farther,  (though  no  names  have  been  invented  for  any  subsequent  pleadings,) 
at  every  stage  throwing  out  of  the  case  what  is  admitted  by  the  parties,  and 
bringing  them  at  last  to  the  actual  subject  of  difference  between  them.  As 
Mr.  Stephens  well  observes,  (p.  449,)  the  alternate  allegations  are  so  manag- 
ed, that  by  the  natural  result  of  that  contention,  the  undisputed  and  imma- 
terial matter  is  constantly  thrown  q/f  until  the  parties  arrive  at  a  demurrer  or 
traverse,  [that  is,  a  direct  denial  by  one  party  of  a  fact  alleged  and  relied  on 
by  the  other,]  upon  which  a  tender  of  issue  takes  place  on  the  one  hand 
and  an  acceptance  of  it  on  the  other  ;  and  the  question  involved  in  the  de- 
murrer or  traverse  is  thus  mutually  referred  to  the  decision  of  the  proper 
tribunal. 

The  production  of  an  issue  thus  defined  and  explained  is,  then,  the  great 
object  of  pleadinor ;  and  it  cannot  but  strike  the  most  common  observer 
that  it  is  not  without  great  advantages  in  the  decision  of  controversies  be- 
tween parties  litigant.  1.  It  gives  to  each  a  distinct  view  of  his  adversa- 
ry's pretensions,  and  of  the  grounds  upon  which  his  own  demands,  or  his 
defence,  must  ultimately  rest ;  so  that  each  partv  comes  prepared  (if  the  is- 
sue be  upon  a  matter  of  fact)  to  sustain  himself  by  such  testimony  as  he 
can  produce  upon  the  single  point  in  question.  2.  TTie  undisputed  and 
immaterial  matter  being-  constantly  thrown  off,  the  parties  are  relieved  from 


246  OF  PLEADING.  [  BOOK  3. 

the  trouble  and  expe^ise  ef  summoning  witnesses,  or  procuring  evidence, 
except  upon  the  single  pleading  which  constitutes  the  issue.  3.  The 
course  of"  pleading  having  the  effect  of  producing  an  issue  in  law  by  de- 
murrer, or  an  issue  in  fact  by  plea,  replication,  &c.  the  matter  of  law  and 
the  matter  of  fact  are  kept  perfectly  distinct,  so  that  the  first  is  always  re- 
ferred to  the  decision  of  the  court,  and  the  second  to  that  of  the  jury  ;  and 
thus  the  embarrassment  consequent  upon  the  submission  of  a  variety  of 
complicated  questions  at  once  is  not  only  avoided,  but  the  jury  are  relieved 
from  the  duty  of  solving  legal  difficulties  above  their  comprehension.  4. 
The  parties  having  themselves,  by  the  operation  of  their  "contention,  or 
mutual  altercation  by  pleading,"  throw.n  off  the  undisputed  and  immate- 
rial matter,  and  evolved  the  real  subject  of  dispute  by  presenting  a  single 
question  of  fact,  the  jury  are  relieved  from  that  principal  difficulty  in  the 
examination  of  all  questions,  viz.  the  discovery  of  the  precise  point  upon 
which  the  controversy  turns.  $t  must,  however,  in  candor  be  confessed, 
:that  these  desirable  objects  are  not  universally  attained,  or  attainable,  even 
by  the  system  of  pleading  known  to  our  law  ;  since  it  sometimes  happens 
that  the  issue  will  involve  both  matters  of  law  and  fact,  and  that  a  variety 
of  matters  rr.ay  be  presented  at  the  same  time  to  the  jury  for  their  decision. 
These  are  perhaps,  however,  but  the  imperfections  inseparable  from  all  hu- 
cnan  institutions. 

In  order  to  secure,  as  far  as  may  be,  the  desirable  objects  for  which  the 
^systera  of  pleading  has  been  constructed,  it  has  been  found  necessary  to 
require  that  the  issue  in  which  the  pleadings  result  should  have  the  quali- 
fies of  being  malerial,  single,  and  cerlaki. 

1.  If  the  point  on  which  the  issue  is  joined  be  immaterial,  that  is,  of  such 
.a  character  that  the  decision  of  that  point  by  the  jury  will  not  enable  the 
icourt  to  decide  the  cause,  it  is  obvious  that  it  cannot  answer  the  very  end 
'Of  pleading,  and  the  parties  would  have  the  expense  and  trouble  of  a  trial 
'Without  any  advantageous  result :  for  after  the  verdict  of  the  jury  o>n  this 
-immaterial  issue,  the  court  could  not  pronounce  judgment  on  the  facts  thus 
found,  but  must  set  aside  the  proceedings  as  far  back  as  the  imperfect  plead- 
ing, and  compel  the  parties  to  plead  de  novo.  This  is  what  is  called  a  re- 
pleader. Hence  it  is  essential  tliat  the  parties  should  be  careful  never  to 
join  issue  upon  an  immaterial  point.  The  consequences  of  doing  so  will 
be  again  more  fully  adverted  to. 

'Z.  The  issue  made  up  must  be  upon  a  single  point  in  reference  to  each 
single  and  distinct  claim  of  the  ]>laintiff ;  and  in  order  to  effect  this,  dupli- 
city in  pleading  is  reprobated.  The  plaintiff,  it  is  true,  may  in  many  cases 
set  up  in  his  declaration  a  variety  of  distinct  claims,  to  each  of  which  there 
may  be  distinct  pleas  and  of  course  distinct  issues:  and  so,  too,  as  the  law 
now  stands,  there  may  be  several  distinct  pleas  to  the  same  count  in  a  de- 
claration ;  as,  tor  instance,  not  guilty  and  son  assault  to  an  action  for  as- 
sault and  battery  ;  but  these  defences  must  be  pleaded  separately  in  distin&t 
pleas.  For  if  they  were  pleaded  together  in  the  same  plea,  the  plaintiff 
would  have  to  reply  to  them  both  in  the  same  replication,  which  would  in- 
troduce inevitable  confusion  ;  since  several  issues  would  then  be  made  up 
in  the  same  branch  of  the  pleadings. 

3.  It  is  essential  to  the  issue  that  it  be  certain,  not  merely  in  point  of 
distinction  but  of  jiarticularity.  Thus  it  liappens  that  in  many  cases  the 
time  and  place  when  and  where  an  act  is  alleged  to  have  been  done,  and 
in  others  the  quantity  and  value  of  the  goods  demanded,  must  be  stated 
with  convenient  certainty.  And  though  tlve  original  occasion  of  this  re- 
quisition, which  has  been  ingeniously  suggested  by  Mr.  Stephen,  no  longer 
applies,  yet  it  is  certainly  as  necessary  now  as  it  ever  can  have  been  here- 


CHAP.  15.]  OF  PLEADING.  247 

tofore,  to  give  notice  to  the  adverse  party  how  to  defend  himself  upon  the 
charge.  See  2  E.  260.  1  T.  R.  748.  1  Tnun.  54-3.  The  certainty  re- 
quired by  this  rule  of  pleading,  it  is  said,  signifies  a  clear  and  distinct  state- 
ment, so  that  it  may  be  understood  by  the  opposite  party,  by  the  jury  who 
are  to  ascertain  the  truth  of  such  statement,  and  by  the  court  who  are  tO' 
give  judgment.  Cow.  082.  Com.  Dig.  Pleader,  C.  17.  Less  certainty  is 
requisite  when  the  law  presumes  that  the  knowledge  of  the  facts  is  pecu- 
liarly in  the  opposite  party  ;  and  so  when  it  is  to  be  presumed  that  the  party 
pleading  is  not  acquainted  with  minute  circumstances.  1-3  East,  112.- 
Com.  Dig.  Pleader,  C.  26.  8  East,  85.  General  statements  of  facts  ad- 
mitting of  almost  any  proof,  are  objectionable;  1  M.  &.S.441.  3  M.  &S. 
114  :  but  where  a  subject  comprehends  multiplicity  of  matter,  there,  in  or- 
d«r  to  avoid  prolixity,  general  pleading  is  allowed.  2  Saund.  411,  n.  4. 
8  T.  R.  462. 

It  is  obvious,  indeed,  that  unless  there  be  adequate  certainty  in  the  plead- 
ings, and  in  the  issue  resulting  from  them,  there  will  not  be  presented  to* 
the  minds  of  the  jury  such'  a  distinct,  plain,, and  intelligible  question,  as  the 
nature  of  the  trial  by  a  jury  renders  particularly  necessary;  and  the  effect 
would  be  to  render  their  deliberations  confused,  and  their  verdict  also  too 
uncertain  to  enable  the  court  to  pronounce  its  judgment  understandingly 
thereupon. 

Having  premised' these  general  remarks,  we  shall  now  proceed  to  consi- 
der more  particularly  the  several  parts  of  pleading,  and  to  set  forth  the  rules- 
and  principles  which  govern  them  respectively. 

1.  Of  the  declaration,  narratio,  or  count.  This  is  the  narration  or  tale  of 
the  plaintiff,  declaring  or  giving  an  account  of  his  cause  of  action.  In  real- 
actions  it  is  most  properly  called  the  coxml,  which  is  derived  from  the  French 
word  conte,  a  narrative.  In  personal  actions  it  is  called  the  ceclaration  ; 
but  where,  as  often  happens,  the  plaintiff  sets  forth  several  distinct  demands^ 
or  the  same  demand  in  several  ways,  these  distinct  statements  are  usually 
denominated  counts,  and  the  whole  together  constitute  the  declaration. 

Thus  with'  a  view  to  accommodate  his  declaration  to  the  evidence  as  it 
may  chance  to  turn  out  upon  the  trial,  in  an  action  upon  the  case  upon  an^ 
assumpsit  for  goods  sold  and  delivered,  the  plaintiff  usually  counts  or  de- 
clares, first,  upon  a  settled  and  agreed  price  between  him  and  the  defen- 
dant ;  as  that  they  bargained  for  twenty  pounds  :  and  lest  he  should  fail  in 
the  proof  of  this,  he  counts  likewise  upon  a  quantum  valebant ;  that  the  de- 
fendant bought  other  goods,  and  agreed  to  pay  him  so  much  as  they  were 
reasonably  worth  ;  and  then  avers  that  they  were  worth  other  twenty  pounds  ; 
and  so  on  in  three  or  four  different  shapes  ;  and  at  last  concludes  with  de- 
claring that  the  defendant  had  refused  to  fulfil  any  of  these  agreements, 
whereby  he  is  endamaged  to  such  a  value.  And  if  he  proves  the  case  laid 
in  any  one  of  his  counts,  though  he  fails  in  the  rest,  he  shall  recover  pro- 
portionate damages.  This  course  is  pursued  also  in  other  cases,  where 
the  pleader  is  doubtful  whether  one  mode  of  stating  his  case  is  sufficient 
in  point  of  law,  or  capable  of  proof  in  point  of  fact ;  and  at  the  same  time 
perceives  another  by  which  the  apprehended  difficulty  may  probably  be 
avoided.  Not  choosing  to  rely  on  either  exclusively,  he  adopts  both,  and 
inserts  the  second  statement  of  the  same  matter,  in  the  shape  of  a  second 
count,  as  if  he  were  proceeding  for  a  separate  cause  of  action. 

Of  the  form  and  constituent  parts  of  the  declaration.  To  illustrate  this 
part  of  our  subject,  I  shall  again  lay  before  the  student  the  declaration  in 
an  action  of  debt  for  the  purpose  of  commentary,  only  premising  that  the 
declaration  must  always  shew  forth  the  plaintiff's  right,  the  injury  sustain- 
ed, and  the  consequent  damage  ;  and  this  with  cartainty,  precision,  and* 
brevity. 


248  OF  I'LEADING.  [  BOOK  3. 

TENTH  JUDICIAL  DISTRICT,  FREDERICK  COUNTY,  set.  (1.) 

A  B  (2)  complains  of  C  D  (^)  in  custody,  8^-c.  of  a  plea  that  he  render  to 
him  (i)  the  sum  of  $500  current  moneij  of  Virginia,  which  he  owes  to 
him,  and  unjustly  detains  from  him  :  for  that  whereas,  the  said  C  D  here- 
tofore, to  wit,  on  the  first  day  of  January,  1825,  (5)  at  the  parish  of 
Frederick  and  county  aforesaid,  by  his  certain  loriling  obligatory,  sealed 
with  his  seal,  and  to  the  court  noio  here  shewn,  acknowledged  himself  to  be 
held  and  firmly  bound  unto  the  said  A  B  in  the  said  sum  of  $500  above 
demanded,  to  be  paid  to  the  said  A  B  when  he,  the  said  C  D,  should  be 
thereunto  afterwards  requested.  Yet  the  said  C  D,  though  often  requested, 
hath  not  yet  paid  the  said  sum,  nor  any  jtart  thereof,  to  the  said  plaintiff , 
hut  to  pay  the  same  hath  hitherto  wholly  refused,  and  still  refuses  so  to  do, 
to  the  damage  of  the  jilaintiff  $50,  and  therefore  he  sues. 

JOHN  DOE.     RICHARD  ROE.     P.  P.  A.  H.  P.  j)ro  qucrcnte. 

The  figures  in  parenthesis  are  used  to  designate  the  different  parts  of  the 
declaration  for  the  purpose  of  reference  in  the  comments  which  follow  : 

(1.)  The  purpose  of  this  is  to  designate  the  court  in  which  the  action  is 
brought,  as  well  as  the  county  in  which  the  venue  is  laid.  For  it  is  a  rule 
that  ''  all  pleadings  must  be  properly  entitled  of  the  court  and  term,"  Step. 
4 1"2,  and  therefore,  (though  this  is  the  usual  mode  with  us,)  yet  in  strictness 
the  formula  should  be  perhaps  yet  more  precise  ;  as  thus,  "Tenth  Judicial 
District,  Superior  Court  for  Frederick  County,  May  Term,  1829.  Frede- 
rick County,  to  wit  :"  for  the  county  where  the  action  is  laid,  is  always 
placed  at  the  commencement,  and  in  the  margin  of  the  declaration.  Step. 
^99.  A\  ithin  this  county  the  venue  is  always  laid  (as  at  figure  5  "  at  the 
parish  of  Frederick  and  county  aforesaid ;")  a  matter  which  it  behoves  us 
to  explain  rather  more  particularly. 

According  to  the  original  constitution  of  the  trial  by  jury,  it  appears  that 
the  jury  consisted  of  persons  who  were  witnesses  of  the  facts  to  be  tried, 
or  at  least  supposed  to  be  in  some  measure  personally  cognizant  of  them. 
Accordingly,  the  venire  facias,  (which  was  a  writ  directing  the  sheriff  to 
summon  a  jury,)  commanded  him  to  summon  them  from  the  immediate 
neighborhood  where  the  facts  occurred.  Step.  153.  This  neigborhood 
constituted  the  venue,  (a  barbarous  derivative  from  venire,)  being  the  place 
whence  the  jury  was  to  come  ;  and  the  venue  could  not  be  laid  in  a  more 
extensive  division  or  section  of  a  county  than  vl  parish.  Now,  in  order  to 
point  out  where  the  sheriff  should  summon  his  jury,  it  was  made  necessa- 
ry that  the  declaration  should  contain  a  reference  to  the  vicinia  or  neigh- 
borhood in  which  the  injury  was  declared  to  be  done,  that  the  clerk  might 
issue  the  vc/uVe/acias  accordingly.  The  sheriff  was  at  first  held  to  a  strict 
obedience  to  this  writ,  and  was  bound  to  summon  jurors  from  the  parish, 
town,  or  hamlet  where  the  venue  was  laid  :  but  in  process  of  time,  when 
jurors  began  to  be  summoned,  not  as  tvitnesses,  but  only  as  judges,  though 
the  form  of  the  wrii  continued  unchanged,  the  practice  was  relaxed,  and 
hundreders  as  well  as  parishioners  came  to  be  summoned,  till  at  lenth  it 
was  provided  by  statute  that  the  venire  should  be  awarded  of  the  body  of 
the  county  where  the  issue  is  triable.  4  Ann,  ch.  16.  See  1  R.  C.  ch.  75, 
§  10.  Since  this  time,  the  form  of  the  writ  in  England  has  been  to  summon 
twelve  good  and  lawful  men  from  the  body  of  the  county.  With  us,  where 
no  venire  facias  actually  issues,  the  sheriff  summons  the  juries  for  service, 
during  each  term  of  the  court,  indiscriminately  from  the  whole  county,  and 
when  a  cause  is  called  in  court,  and  a  jury  is  wanted  for  the  trial  of  it,  he 
calls  Irom  his  panel  (which  is  a  list  made  up  of  persons  thus  summoned) 
twelve  men  who  arc  thereupon  swora  to  try  the  issue,  or  to  inquire  of  da- 
mages, as  the  case  may  be. 


CHAP.  15.]  OP  PLEADING.  2 19 

It  must  be  farther  observed,  that  with  us  the  laying  a  venue  continues  to 
be  practised,  but  seems  to  be  mere  matter  of  form.  See  1  Wash.  81,  67. 
3  H.  &.  M.  309.  5  Mun.  27.  The  want  of  it  (if  error  even  on  demurrer) 
is  cured  by  a  verdict  or  judgment  by  nil  dicit.  1  R.  C.  ch.  128,  §  103.  In- 
deed, in  Virginia,  the  legislative  intention  seems  to  have  been  to  give  juris- 
diction with  reference  to  the  person,  rather  than  to  the  place  where  the  in- 
jury is  done,  or  the  contract  made.  Thus  the  general  rule  is,  that  the  de- 
fendant must  be  sued  in  the  county  where  he  resides  ;  and  if  he  does  not 
reside  in  the  county  where  a  suit  is  brought,  the  sheriff  must  return  "  no  in- 
habitant," and  the  writ  will  abate.  1  R.  C.  ch.  128,  §  41,  CO,  ch.  78,  §  18. 
The  exceptions  to  this  rule  are, 

1.  Where  the  cause  of  action  arose  in  the  county  ;  as  where  goods  were 
bought  or  a  note  was  given  in  it,  the  defendant,  if  he  can  be  taken  in  that 
county,  77iai/  be  sued  there. 

So,  too,  if  the  defendant  commits  a  trespass  in  a  county  other  than  that 
wherein  he  resides,  he  may  be  sued  where  the  wrong  was  done,  if  he  can 
be  there  taken,  though  he  reside  elsewhere.    Ashby  rs.  Kiger,  not  reported. 

2.  Where  a  non  est  inventus  has  been  returned  against  him  in  his  own 
county,  he  may  be  sued  in  any  county  where  he  may  happen  to  be  found, 
and  can  be  taken. 

3.  Where  he  is  jointly  bound  with  others  residing  in  any  county,  he  may 
be  sued  and  taken  if  he  be  found  therein. 

4.  If  he  is  a  non-resident  of  the  commonwealth,  he  may  be  sued  in  any 
county  where  he  can  be  taken. 

5.  Writs  of  right,  and  other  real  actions,  and  ejectments,  are  local  ac- 
tions, and  can  only  be  brought  in  the  county  where  the  land  lies  which  is 
the  subject  of  controversy.  These  are  the  only  local  actions  in  Virginia. 
A  correspondent  difference  is  known  to  the  English  law  between  local  and 
transitory  actions,  though  under  the  former  term  are  comprehended  many 
vi'hich,  with  us,  would  be  deemed  to  be  embraced  by  the  latter ;  such  as 
trespass  quare  clausum  or  trespass  on  the  case  for  waste  committed,  and  the 
like.  In  the  local  actions  above  mentioned,  the  venue  must  always  be  truly 
laid,  and,  as  we  have  said  already,  such  actions  must  of  course  be  brought 
in  the  county  where  the  land  lies.  In  transitory  actions,  which  may  be 
brought  any  where,  the  venue  is  always  laid  within  the  county  where  the 
action  is  brought ;  but  where  the  place  where  a  contract  was  made  appears 
upon  the  face  of  the  contract  itself  to  have  been  in  another  county,  though 
the  venue  must  still  be  laid  in  the  county  where  the  suit  is  brought,  yet  it 
must  be  with  a  videlicit,  as  has  been  already  explained,  in  treating  of  the 
declaration  in  debt.  Mr.  Stephen,  indeed,  lays  down  this  as  the  rule  in  all 
cases  where  transitory  matters  are  alleged  out  of  their  true  place.  How- 
ever this  may  be,  the  result  of  the  whole  of  these  doctrines  seems  to  be, 
that  in  transitory  actions  the  laying  the  venue  is  a  matter  of /orm,  and  con- 
stitutes no  material  part  of  the  issue.  So  that  one  place  may  be  alleged, 
and  another  proved.  Yet  it  must  be  remembered,  that  it  is  otherwise 
where  the  place  of  the  transaction  constitutes  essentially  a  part  of  the  plain- 
tiffs title  or  right  to  sue  ;  for  then  it  becomes  matter  of  substance  and  must 
be  truly  stated. 

(2.)  In  the  common  pleas  in  England,  the  declaration  commences  with 
a  short  recital  of  the  writ  thus :  "CD  was  summoned  to  answer  A  B  of  a 
plea  that  he  render  to  him  £10,  which  he  owes  him  and  unjustly  detains  ;  and, 
therefore,  the  said  A  B  by  his  attorney  complains,"  &-c.  In  Virginia,  our 
forms  pursue  more  nearly  the  manner  of  declaring  in  the  King's  bench, 
which  omits  the  recital  in  italics,  and  commences  abruptly  with  the  state- 
ment of  the  complaint.  It  will  be  observed,  that  declarations  and  plead- 
ings are  always  in  the  third  person,  and  framed,  in  short,  as  if  they  were 
VOL.  2—32 


250  OF  PLEADING.  [  BOOK  3. 

extracts  from  a  complete  record  of  the  wliole  suit;  though  the  record  is  by 
the  present  jiractice  not  drawn  up  until  a  subsequent  period,  and  is  in  fact 
a  transcri])t  irom  thon,  the  reason  of  which  has  been  ingeniously  explained 
by  the  author  before  (pioted  ;   page  35. 

'(3.)  The  declaration  here  alleges  the  defendant  to  be  in  custody;  but 
this  is  now  merely  matter  of  form  and  equally  prevails,  whether  the  defen- 
dant is  or  is  not  in  actual  custody,  or  is  out  on  bail,  or  was  never  even  held 
to  bail. 

(4.)  The  declaration  here  proceeds  to  set  forth  the  plaintiff's  demand 
distinctly,  and  the  ground  on  which  it  rests,  and  concludes  with  an  allega- 
tion of  the  injury  on  the  part  of  the  defendant  and  a  statement  of  the  da- 
mages he  himself  has  sustained.  In  personal  and  mixed  actions,  this  is 
doe°med  essential  ;  but  in  droiturel  actions  no  damages  were  recoverable  at 
common  law,  and  none  were  therefore  laid.  In  personal  actions  for  a  liqui- 
dated debt  or  a  specific  chattel,  the  damages  are  usually  laid  at  a  small 
sum  ;  but  where  the  action  sounds  in  damages,  (as  is  the  case  with  assump- 
sit, covenant,  trespass,  slander  and  the  like,)  they  should  be  laid  high  enough 
to  cover  any  amount  which  may  be  awarded  by  the  jury,  since  the  plaintiff 
never  can  have  judgment  for  more  than  he  has  demanded. 

The  declaration  always  concludes  with  these  words,  "  and  thereupon  he 
brings  suit,"  &-c.  "  inde  producit  sectam,"  &c.  By  which  words,  stcit  or  sec- 
ta  (a  sequendo)  were  anciently  understood  the  witnesses  or  followers  of 
the  plaintiff.  For  in  former  times  the  law  would  not  put  the  defendant  to 
the  trouble  of  answering  the  charge,  till  the  plaintiff  had  made  out  at  least 
a  probable  case.  But  the  actual  production  of  the  suit,  the  secla,  or  follow- 
ers, is  now  antiquated,  and  hath  been  totally  disused,  at  least  ever  since 
the  reign  of  Edward  the  Third,  though  the  form  of  it  still  continues. 

At  the  end  of  the  declaration  are  added  also  the  plaintiff's  common 
pledges  of  prosecution,  John  Doe  and  Richard  Roe,  which,  as  we  before 
observed,  are  now  mere  names  of  form  ;  though  formerly  they  were  of  use 
10  answer  to  the  king  for  the  amercement  of  the  plaintiff,  in  case  he  were 
nonsuited,  barred  of  his  action,  or  had  a  verdict  or  judgment  against  him. 

In  actions  at  the  suit  of  an  executor  or  administrator,  immediately  after 
the  conclusion  "to  the  damage,  &.c."  and  before  the  pledges,  a  profert  of 
the  letters  testamentary,  or  letters  of  administration,  should  be  made.  Bac. 
Ab.  Executor,  C.  Doug.  5,  in  notes.  But  the  omission  is  aided  unless 
the  defendant  demur  specially. 

It  is  a  rule  of  pleading  that  the  declaration  in  every  case  must  be  con- 
formable to  the  original  writ;  with  this  qualification,  however,  that  in  ge- 
neral it  may  and  does,  and  indeed  ought,  so  i'ar  to  vary  from  the  writ  as  to 
state  the  cause  of  action  more  specially.  Yet  a  variance  between  the  de- 
claration and  the  writ  could  only  be  taken  advantage  of  by  plea  in  abate- 
ment or  by  writ  of  error  (Sleph.  4-24,)  or  motion  in  arrest  of  judgment ; 
and  these  two  lasL  modes  of  making  the  objection  are  taken  away  by  the 
statutes  of  Jeofail.  The  first,  viz.  by  plea  in  abatement,  is  also  in  a  great 
degree  impracticable  according  to  the  modern  practice.  For  such  a  plea 
cannot  be  rendered  available  without  what  is  called  oyer  of  the  writ.  The 
object  of  praying  oyer  of  the  writ  is  to  spread  it  upon  record  in  order  to  show 
the  variance  between  it  and  the  declaration,  if  the  latter  does  not  conform 
to  it.  Without  oyer  no  such  advantage  can  be  taken  ;  2  Wash.  212.  7  E. 
383  ;  for  though  the  writ  is  even  without  oyer  considered  as  part  of  the  re- 
cord for  purposes  of  amendment,  and  for  the  sujjport  of  the  proceedings, 
yet  it  is  not  so  for  the  purpose  of  reversing  them,  unless  made  so  by  oyer; 
Ibid.  2  Mun.  2iJ7.  3  H.  &  M.  502.  4  H.  St  M.  309,  310;  except  iu 
cases  of  judgment  by  delauk  for  want  of  an  api)earance.  4  Ran.  413. 
And  in  England,  where  oyer  of  the  writ  is  deni'anded  in  order  to  enable 


CHAP.  15.]  OP  PLEADING.  251 

the  defendant  to  plead  a  variance  between  the  declaration  and  the  writ,  or 
to  show  the  writ  to  be  abateablc,  it  is  usual  in  the  court  of  King's  bench 
to  refuse  it.  See  Doug.  227.  3  B.  &  P.  398.  1  B.  &.  P.  646.  7  E.  R. 
383.  And  it  is  said  by  Lord  Mansfield  to  be  also  the  practice  of  the  com- 
mon pleas.  Where,  however,  oyer  is  demanded  to  enable  the  party  to  avail 
himself  by  plea  of  the  protection  of  the  law,  as  where  he  is  improperly 
sued  out  of  his  own  county,  it  would  doubtless  be  allowed.* 

If  the  plaintiff  neglects  to  file  his  declaration  on  the  rule  day  at  which 
the  process  is  returned  executed,  the  defendant  may  give  him  a  rule  to  de- 
clare, and  if  he  fails  or  neglects  to  do  so  at  the  next  rule  day,  which  is  one 
month  after,  or  if  he  at  any  time  fails  to  prosecute  his  suit,  (1  R.  C.  ch.  128, 
§  72,)  he  is  adjudged  not  to  follow  or  pursue  his  remedy  as  he  ought  to  do; 
"  and  thereupon  a  nonsuit,  or  non  prosequitur,  is  entered  ;  and  he  is  said  to 
be  nonpros'd.  And  for  thus  deserting  his  complaint,  after  making  a  false 
claim  or  complaint,  (pro  falsa  clamor e  sua,)  he  shall  not  only  pay  costs  [but 
also  the  farther  sum  of  $5  for  his  nonsuit,  1  R.  C.  ch.  128,  §  72,]  to  the 
defendant.  A  retraxit  differs  from  a  nonsuit,  in  that  the  one  is  negative, 
and  the  other  positive  :  the  nonsuit  is  a  mere  default  and  neglect  of  the 
plaintiff,  and  therefore  he  is  allowed  to  begin  his  suit  again,  upon  payment 
of  costs  ;  but  a  retraxit  is  an  open  and  voluntary  renunciation  of  his  suit, 
in  court,  and  by  this  he  for  ever  loses  his  action.  [See  4  Mun.  207,  a  case 
turning  on  this  distinction.]  A  discontinuance  is  somewhat  similar  to  a 
nonsuit ;  for  when  a  plaintiff  leaves  a  chasm  in  the  proceedings  of  his 
cause,  as  by  not  continuing  the  process  regularly  from  day  to  day,  and  time 
to  time,  as  he  ought  to  do,  the  suit  is  discontinued,  and  the  defendant  is  no 
longer  bound  to  attend;  but  the  plaintiff  must  begin  again,  by  suing  out  a 
new  original,  usually  paying  costs  to  his  antagonist." 

In  England  it  is  a  familiar  practice  to  direct  a  plaintiff  to  be  nonsuited. 
With  us  it  is  otherwise.  Our  courts  adhere  to  the  original  definition  of  the 
term.  Thus,  nonsuit  is  the  failure  of  the  plaintiff  to  pursue  his  remedy. 
So  long  as  he  does  pursue  it  regularly,  the  court  has  no  power  to  direct  a 
nonsuit,  however  well  satisfied  they  may  be  that  he  cannot  recover.  They 
may  advise  it,  but  the  ])lainliff  has  a  right  to  refuse,  and  the  remedy  of  the 
court  is  to  instruct  the  jury,  and  grant  a  new  trial  if  the  verdict  is  against 
their  instruction.  1  Wash.  89,  219.  If,  however,  the  court  directs  a  non- 
suit, and  the  plaintiff  excepts  to  the  opinion  of  the  court  only  as  to  the  law 
i)f  his  case,  but  not  as  to  the  direction  of  the  nonsuit,  he  cannot  reverse  the 
judgment  afterwards  for  that  error.     1  Wash.  138. 

The  rule  just  laid  down  admits,  however,  of  exception  ;  for  if  an  action 
'ie  brought  in  any  court  where  it  shall  appear  either  by  the  plaintiff's  own 
shewing,  or  the  verdict  of  a  jury,  that  a  justice  of  peace  had  cognizance, 
the  plaintiff  shall  be  nonsuited.     1  R.  C.  ch.  71,  §  30. 

All  nonsuits  in  the  office  for  want  of  prosecution  according  to  the  rules 
prescribed  by  law,  are  considered  as  final  judgments  after  the  end  of  the 
term  succeeding.     Ch.  128,  §  79. 

The  plaintiflf  cannot  suffer  a  nonsuit  after  the  jury  retire  from  the  bar.  1 
R.  C.  ch.  128,  §  95. 

Of  the  defence.  "  When  the  plaintiff  hath  stated  his  case  in  the  decla- 
ration, it  is  incumbent  on  the  defendant  within  a  reasonable  time  to  make 
his  defence  and  to  put  in  a  plea  ;  else  the  plaintiff  will  at  once  recover  judg- 
ment by  default,  or  nihil  dicit  of  the  defendant. 

*See  Tidfl's  Practice,  455  to  439.  These  irregularities,  it  would  seem,  are  settled  and  corrected 
where  they  are  material,  as  in  bailable  cases,  in  a  summary  way  bv  the  court.  See  4  East,  !38J,ana 
the  other  cases  cited  by  Tidd.  See  also  1  Sauii.  318,  n.  3.  In  6  T.  R.  3&,  the  court  refused  to  set 
aside  mere  irregularity  even  on  motion.  Error,  however,  will  lie  (where  there  is  a  bad  originaij 
^vithout  oyer:  but  it  may  be  defeated  (in  England)  by  the  master  of  the  Rolls  grauting  a  new  origi- 
nal, or  amending  the  first.    See  also  7  T.  R.  5^99.    2  Wilson,  395. 


252  •         OF  PLEADING.  [  book  3. 

"  Defence,  in  its  true  legal  sense,  signifies  not  a  justification,  protection, 
or  ffuard,  which  is  now  its  popular  signification;  but  merely  an  opposing 
or  '^denial  (from  the  French  verb  defendre)  of  the  truth  or  validity  of  the 
complaint.  It  is  the  contestatio  litis  of  the  civilians  :  a  general  assertion 
that  the  plaintiff  hath  no  ground  of  action,  which  assertion  is  afterwards 
extended  and  maintained  in  his  plea.  For  it  would  be  ridiculous  to  sup- 
pose that  the  defendant  comes  and  defends  (or,  in  the  vulgar  acceptation, 
justifies)  the  force  and  injury,  in  one  line,  and  pleads  that  he  is  not  guilty 
of  the  trespass  complained  of  in  the  next.  It  is  in  the  sense  above  men- 
tioned, also,  that  in  writs  of  right,  the  tenant  always  comes  and  defends  the 
right  of  the  demandant  and  his  seisin,  jus  praedicti  S.  et  seisinam  ipsiuSy 
(or  else  the  seisin  of  his  ancestor,  upon  which  he  counts,  as  the  case  may 
be,)  and  the  demandant  may  reply,  that  the  tenant  unjustly  defends  his,  the 
demandant's  right,  and  the  seisin  on  which  he  counts.  All  which  is  ex- 
tremely clear,  if  we  understand  by  defence  an  opposition  or  denial,  but  it  is 
otherwise  inexplicably  difficult. 

"  The  courts  were  formerly  very  nice  and  curious  with  respect  to  the  na- 
ture of  the  defence,  so  that  if  no  defence  was  made,  though  a  sufficient 
plea  was  pleaded,  the  plaintiff  should  recover  judgment :  and  therefore  the 
book  entitled  novae  narrationes  or  the  n«w  ialys,  at  the  end  of  almost  every 
count,  narratio,  or  tale,  subjoins  such  defernce  as  is  proper  for  the  defendant 
to  make.  For  a  general  defence  or  denial  was  not  prudent  in  every  situa- 
tion, since  thereby  the  propriety  of  the  writ,  the  competency  of  the  plain- 
tiff, and  the  cognizance  of  the  court,  were  allowed.  By  defending  the 
force  and  injury,  the  defendant  waived  all  pleas  of  misnomer  ;  by  defend- 
ing the  damages,  all  exceptions  to  the  person  of  the  plaintiff;  and  by  de- 
fending either  one  or  the  other  when  and  where  it  should  behoove  him,  he 
acknowledged  the  jurisdiction  of  the  court.  But  of  late  years  these  nice- 
ties have  been  very  deservedly  discountenanced:  though  they  still  seem  to 
be  law,  if  insisted  on." 

Before  defence  the  defendant  was  by  common  law  entitled  to  demand 
one  imparlance  or  licentia  loquendi,  provided  the  suit  was  commenced  by 
capias  or  latitat  without  any  special  original ;  and  farther  time  might  also 
have  been  granted  by  consent  of  the  court;  the  professed  object  of  all 
which  was  to  enable  him  to  imparl  or  confer  with  the  plaintiff  and  thereby 
terminate  their  difference  amicably.  Our  law  in  effect  allows  an  impar- 
lance to  the  defendant  when  he  has  appeared  to  the  writ,  by  giving  him 
till  the  next  rules  (one  month  after  his  appearance)  to  answer  the  declara- 
tion. There  are  in  our  statutes  no  provisions  as  to  imparlances,  (except  in 
the  case  of  a  writ  of  right,  1  R.  C.  ch.  128,  §  34.)  They  are  recognized 
by  Mr.  Hening  in  his  form  of  a  rule  book.  Lawyer's  Guide,  pa.  7.  I  do 
not  perceive  how  they  can  be  compatible  with  the  strict  regulations  as  to 
the  time  of  pleading  at  the  rules  prescribed  by  the  act  of  assembly.  1  R. 
C.  ch.  128,  §  73.  They  may  be  allowed  upon  motion  however  for  reason- 
able cause  by  the  court. 

"  There  are  also  other  previous  steps  which  may  be  taken  by  a  defendant 
before  he  puts  in  his  plea.  He  might  formerly,  in  real  actions,  demand  a 
view  of  the  thing  in  question,  in  order  to  ascertain  its  identity  and  other 
circumstances.  It  may  now,  as  formerly,  crave  oyer  of  the  writ,  or  of  the 
bond,  or  other  specialty  upon  which  the  action  is  brought :  that  is,  to  hear 
it  read  to  him  ;  the  generality  of  defendants  in  the  times  of  ancient  sim- 
plicity being  supposed  incapable  to  read  it  themselves,  whereupon  the  whole 
is  entered  verbatim  upon  the  record,  and  the  defendant  may  take  advantage 
of  any  condition  or  other  part  of  it,  not  stated  in  the  plaintiff's  declaration. 
In  real  actions,  also,  tlic  tenant  mny  pray  in  aid,  or  call  for  assistance  of  an- 
other, to  help  him  to  plead,  because  of  the  feebleness  or  imbccihty  of  his 


CHAP.  15.]  OF  PLEADING.  253 

own  estate.  Thus  a  tenant  for  life  may  pray  in  aid  of  him  that  hath  tlie 
inheritance  in  remainder  or  reversion  ;  and  an  incumbent  may  pray  in  aid 
of  the  patron  and  ordinary,  that  is,  that  they  shall  be  joined  in  the  action, 
and  help  to  defend  the  title." 

So  too,  at  common  law,  in  certain  cases,  the  defendant  or  tenant  might 
vouch  the  warrantor,  and  if  he  was  an  infant  he  might  pray  that  the  parol 
might  demur,  that  is,  that  the  progress  of  the  suit  might  be  suspended  till 
he  attained  his  full  age.  But  all  views  and  vouchers  are  taken  away  by 
our  statute,  1  R.  C.  ch.  128,  §  31,  and  it  is  moreover  provided  that  the  pa- 
rol shall  not  demur  for  infancy,  either  at  law  or  in  equity.     §  32. 

"  When  these  proceedings  are  over,  the  defendant  must  then  put  in  his 
excuse  or  plea.  Pleas  are  of  two  sorts  ;  dilatory  pleas,  and  pleas  to  the 
action.  Dilatory  pleas  are  such  as  tend  merely  to  delay  or  put  off  the  suit, 
by  questioning  the  propriety  of  the  remedy,  rather  than  by  denying  the  in- 
jury :  pleas  to  the  action  are  such  as  dispute  the  very  cause  of  suit.  The 
former  cannot  [in  England]  be  pleaded  after  a  general  imparlance,  which 
is  an  acknowledgment  of  the  propriety  of  the  action.  For  imparlances  are 
either  general,  of  which  we  have  before  spoken,  and  which  are  granted  of 
course;  or  special,  with  a  saving  of  all  exceptions  to  the  writ  or  count, 
which  may  be  granted  by  the  prothonotary ;  or  they  may  be  still  viore  spe- 
cial, with  a  saving  of  all  exceptions  whatsoever  which  are  granted  at  the 
discretion  of  the  court." 

In  Virginia,  pleas  of  this  description  cannot  be  pleaded  on  setting  aside 
an  office  judgment,  for  they  are  not  issuable  pleas  within  the  meaning  of 
the  act  of  assembly,  which  only  permits  an  office  judgment  to  be  set  aside 
on  the  defendant's  pleading  to  issue  immediately.  1  R.  C.  ch.  128,  §  77. 
1  Mun.  285.  2  Call,  63,  67.  They  are  not,  however,  to  be  filed,  I  con- 
ceive, on  the  return  of  the  writ,  or  before  declaration  filed,  (1  T.  R.  277. 
5  T.  R.  210.  2  Chitty's  Rep.  7.  1  Petersdorff,  33,)  but  should  be  plead- 
ed at  the  first  rules  after  the  declaration  filed,  at  the  latest,  for  at  those  rules 
the  rule  to  plead  expires,  and  if  there  be  no  plea  there  will  be  judgment 
by  nil  dicit. 

Dilatory  pleas  are,  1.  To  the  jurisdiction  of  the  court.  2.  To  the  disa- 
bility of  the  plaintiff,  as  that  the  plaintiff  is  an  alien  enemy,  or  a  feme  co- 
vert, or  a  fictitious  person,  or  in  any  way  disabled  to  sue.  3.  To  the  disa- 
bility of  the  defendant,  as  by  a  feme  covert  who  is  sued  without  her  hus- 
band. (3  T.  R.  627.)  4.  In  abatement ;  "  which  abatement  is  either  of 
the  writ  or  the  count,  for  some  defect  in  one  of  them  ;  as  by  misnaming  the 
defendant,  which  is  called  a  misnomer ;  giving  him  a  wrong  addition,  as 
esquire  instead  of  knight ;  or  other  want  of  form  in  any  material  respect. 
Or,  it  may  be,  that  the  plaintiff  is  dead  ;  for  the  death  of  either  party  is  at 
once  an  abatement  of  the  suit.  And  in  actions  merely  personal,  arising  ex 
delicto,  for  wrongs  actually  done  or  committed  by  the  defendant,  as  tres- 
pass, battery,  and  slander,  the  rule  is  that  actio  personalis  moritur  cum  per- 
sona :  and  it  never  shall  be  revived  either  by  or  against  the  executors  or 
other  representatives.  For  neither  the  executors  of  the  plaintiff  have  re- 
ceived, nor  those  of  the  defendant  have  committed  to  their  own  personal 
capacity,  any  manner  of  wrong  or  injury.  But  in  actions  arising  ex  con- 
tractu by  breach  of  promise  and  the  like,  where  the  right  descends  to  the 
representatives  of  the  plaintiff,  and  those  of  the  defendant  have  assets  to 
answer  the  demand,  though  the  suits  abated  at  common  law  by  the  death 
of  the  parties,  yet  they  might  be  revived  against  or  by  the  executors  :  being, 
indeed,  rather  actions  against  the  property  than  the  person,  in  which  the 
executors  have  now  the  same  interest  that  their  testator  had  before. 

But,  in  Virginia,  neither  suits  at  law  or  in  equity  now  abate  by  death  even 
before  verdict,  if  the  suit  can  be  maintained  by  or  against  executors  or  admi- 


254  OF  PLEADING.  [BOOK  3. 

nistrators.*  But  a  scire  facias  issues  against  tlic  defendant,  or,  if  he  be 
dead,  against  liis  executors  or  administrators,  to  shew  cause  why  the  suit 
should  not  be  proceeded  in  to  final  judgment.  1  R.  C.  ch.  128,  §  37,  38. 
And  if  no  cause  be  shewn  the  case  proceeds.  If  one  of  two  or  more 
plaintiffs  die,  the  death  of  one  shall  not  abate  the  suit,  if  the  cause  of  ac- 
tion be  such  as  survives  to  the  other,  but  the  action  shall  proceed  in  his 
name.  Ibid.  If,  in  any  case,  either  party  die  between  verdict  and  judg- 
ment, judgment  is  entered  ae  if  both  were  living.  Ibid-  If,  however,  the 
plaintiff'  die  before  verdict  or  decree,  the  suit  will  be  discontinued  if  a  scire 
facias  be  not  sued  out  by  the  proper  representative  at  or  before  the  second 
terra  after  the  suggestion  of  the  death  on  record. 

Every  plea  in  abatement  must  be  verified  by  aflldavit  of  {he  party  ofCer- 
ing  it.  1  R.  C.  ch.  128,  §  33.  It  would  seem  in  England  to  be  otherwise. 
Lumley  vs.  Foster,  Barnes's  notes,  344.  From  Mr.  Blackstone's  book  3, 
pa.  3t)2,  it  seems  that  probable  matter  shewn  to  the  court  will  suffice. 

It  is  a  rule,  that  in  all  pleas  in  abatement  the  defendant  "  must  give  the 
plaintiff  a  better  writ ;"  that  is,  he  must  not  only  shew  that  there  is  error, 
but  at  the  same  time  correct  the  mistake,  so  as  to  enable  the  plaintiff  to 
avoid  the  same  objection  in  another  suit.  Thus  if  he  pleads  in  abatement 
a  misnomer,  (that  he  is  misnamed  in  the  writ.)  he  must  shew  what  his  true 
name  is.  And  this  requisition  is  often  a  criterion  to  distinguish  matter  of 
abatement  from  matter  in  bar.  Matter  in  bar  impugns  the  right  of  action 
altogether.  Matter  in  abatement  does  not ;  and  if  a  better  writ  can  be  giv- 
en, the  plea  ought  not  to  be  in  bar.  4  T.  R.  227.  Thus  if  I  sue  A  B  as 
executor  and  he  is  administrator,  the  error  is  matter  of  abatement,  for  though 
I  cannot  sue  him  in  the  former  character,  I  may  in  the  latter,  and  there- 
fore he  can  "  give  me  a  better  writ  "  by  shewing  that  he  is  not  executor 
but  administrator.  But  if  he  was  neither  one  nor  the  other,  and  he  is  sued 
on  the  contract  of  his  supposed  testator,  he  may  plead  in  bar  that  he  is  not 
executor  or  administrator,  for  this  plea  shews  that  he  is  not  suable  at  all 
as  the  decedent's  representative. 

It  is  also  a  rule,  that  dilatory  pleas  must  be  pleaded  at  a  preliminary  stage 
of  the  suit.  They  are  in  general  not  allowed  after  a  full  defence,  or  gene- 
nera!  imparlance  ;  nor  after  oyer  of  the  writing  declared  on,  nor  after  a  plea 
in  bar.  Nor  is  a  plea  in  abatement,  as  has  been  already  said,  an  issuable 
plea,  within  the  meaning  of  the  act,  which  allows  the  defendant  to  set  aside 
an  office  judgment  upon  pleading  to  issue,  2  Call,  63,  67.  1  Mun.  285, 
unless  the  abateable  matter  has  arisen  since  the  last  continuance;  2  Call, 
49;   as  that  the  plaintiff  being  a  feme  sole,  has  since  married. 

The  order  of  pleading  as  established  at  the  present  day,  is,  1.  To  the 
jurisdiction.  2.  To  the  disability  ;  first,  of  the  plaintiff  and  then  of  the  de- 
fendant. 3.  To  the  count  or  declaration.  4,  To  the  writ  ;  and  here  first 
to  its  form  for  matter  apparent  on  its  face,  and  then  for  matter  dehors  ;  se- 
cond, to  the  action  of  the  writ;  e.  g.  where  the  case  is  in  case  and  the 
matter  of  it  shews  it  ought  to  have  been  trespass  vi  ct  cirmis.  5,  To  the 
action  itself  in  bar  thereof.  All  these  may  be  pleaded  successively,  provid- 
ed they  are  overruled  upon  demurrer  ;  for  on  dilatory  pleas  the  judgment  is 
that  the  defendant  respondeat  ouster.  But  the  defendant  can  neither  plead 
successively  two  pleas  of  the  same  kind,  (e.  g.  two  pleas  to  the  jurisdiction,) 
nor  can  he  vary  the  order  above  mentioned  ;  for  by  pleading  any  one  of 
these  several  kinds  of  plea,  he  is  taken  to  waive  or  renounce  all  pleas  of  a 
kind  prior  in  the  series.  Nor  can  the  defendant  plead  one  of  these  pleas 
after  another,  where  instead  of  a  demurrer  there  has  been  an  issue  in  fact 

*  Aclinns  of  irespnss  or  trover  for  poods  of  llio  testator  mav  be  mainfaincd  by  or  against  executors 
or  administrators.  1  R.  C.  ch.  104,  ^  61.  See  4  I\lun.  IIJG.  ('ow.  371.  1  Saun.'21l),  n.  1.  So  of  tres- 
pass Ibr  mesne  profits.    Gilm.  3'JJ.    And  the  dainages  recovered  are  assets  in  all  llicse  cases. 


CHAP,  15.]  OF  PLEADING.  255 

taken  upon  that  other.  For  if  the  judgment  on  that  issue  is  for  flie  defen- 
dant, it  either  terminates  or  (in  case  of  a  plea  of  suspension)  suspends  ths 
action;  and  if  for  the  plaintiff  it  is  absolute,  for  he  shall  upon  the  verdict 
have  judgment  for  his  debt  or  damages,  which  ouoht  to  be  assessed  by  the 
same  jury  in  their  verdict  upon  the  matter  of  abatement.  2  Wils.  368.  2 
Saun.  -210,  g.  n.  3.     1  Chitty,  455. 

"All  pleas  to  the  jurisdiction  conclude  to  the  cognizance  of  the  court: 
praying  'judgment,  whether  the  court  will  have  further  cognizance  of  the 
suit ;'  pleas  to  the  disability  conclude  to  the  person  ;  by  praying  'judg- 
ment, if  the  said  A,  the  plaintiff",  ought  to  be  answered  ;'  and  pleas  in  abate- 
ment (when  the  suit  is  by  original)  conclude  to  the  writ  or  declaration ;  by 
praying  'judgment  of  the  writ,  or  declaration,  and  that  the  same  may  be 
quashed  '  cassetur,  made  void,  or  abated  ;  but,  if  the  action  be  by  bill,  the 
plea  must  pray  'judgment  of  the  bill,'  and  not  of  the  declaration  ;  the  bill 
being  here  the  original,  and  the  declaration  only  a  copy  of  the  bill. 

"  When  these  dilatory  pleas  are  allowed,  the  cause  is  either  dismissed 
from  that  jurisdiction,  or  the  plaintiff  is  stayed  till  his  disability  be  removed  ; 
or  he  is  obliged  to  sue  out  a  new  writ,  by  leave  obtained  from  the  court ; 
or  to  amend  and  new-frame  his  declaration.  But  when  on  the  other  hand 
they  are  overruled  upon  demurrer  as  frivolous,  the  defendant  has  judgment 
of  respondeat  ouster  or  to  answer  over  in  some  better  manner." 

If  the  plaintiff,  upon  the  filing  of  a  plea  in  abatement,  acknowledges  his 
error  by  entering  a  cassetur  billa  or  breve  [let  the  declaration  or  writ  be 
quashed]  he  is  not  liable  to  costs.  Tidd,  8  edi.  737.  But  it  is  otherwise 
if  he  goes  on  to  trial,  and  the  issue  in  fact  is  found  for  the  defendant.  Ld. 
Ray.  337.  Neither  party  is  entitled  to  costs  upon  a  demurrer  to  a  plea  m 
abatement.     Id.  992. 

Where  the  defendant  either  waives  the  preliminary  objections  which  we 
have  been  considering,  or  judgment  on  any  of  the  foregoing  pleas  has  been 
given  against  him  on  demurrer,  he  must,  if  he  designs  to  defend  the  cause, 
either  demur  to  the  plaintiff's  declaration,  (which  matter  we  shall  hereafter 
consider,)  or  plead. 

2.  A  plea  to  the  action :  that  is,  an  answer  to  the  merits  of  the  com- 
plaint.    This  is  done  by  confessing  it  in  the  whole  or  in  part,  or  denying  it. 

"  A  confession  of  the  whole  complaint  is  not  very  usual,  for  then  the  de- 
fendant would  probably  end  the  matter  sooner ;  or  not  plead  at  all,  but  suf- 
fer judgment  to  go  by  default.  Yet  sometimes,  after  tender  and  refusal  of 
a  debt,  if  the  creditor  harasses  his  debtor  with  an  action,  it  then  becomes 
necessary  for  the  defendant  to  acknowledge  the  debt,  and  plead  the  tender; 
adding,  that  he  has  always  been  ready,  tout  temps  prist,  and  still  is  ready, 
uncore  prist  to  discharge  it:  for  a  tender  by  the  debtor  and  refusal  by  the 
creditor  will  in  all  cases  discharge  the  costs,  but  not  the  debt  itself;  though 
in  some  particular  cases  the  creditor  will  totally  lose  his  money."  But  fre- 
quently the  defendant  confesses  one  part  of  the  complaint,  (by  a  cognovit 
actionem  in  respect  thereof,)  and  traverses,  (that  is.  denies)  the  rest.  Thus 
he  may  plead  that  "  he  cannot  gainsay  the  plaintiffs  action  against  him  as  to 
£50,  part  of  the  debt  in  the  declaration  mentioned,  and  as  to  the  other  £60^ 
the  residue  of  the  said  debt,  he  saith  that  he  hath  paid  the  same."  A  spe- 
cies of  this  sort  of  confession  is  the  payment  of  money  into  court,  which 
is  for  the  most  part  necessary  in  pleading  a  tender,  and  is  itself  a  kind  of 
tender  to  the  plaintiff;  "  by  paying  into  the  hands  of  the  proper  officer  of 
the  court  as  much  as  the  defendant  acknowledges  to  be  due,  together  with 
the  costs  hitherto  incurred,  in  order  to  prevent  the  expense  of  any  farther 
proceedings.  This  may  be  done  upon  what  is  called  a  motion;  which 
is  an  occasional  application  to  the  court  by  the  parties  or  their  counsel,  in 
cyder  to  obtain  some  rule  or  order  of  court,  which  becomes  necessary  in- 


256  OF  PLEADING.  [  book  3. 

the  progress  of  a  cause;  and  it  is  usually  grounded  upon  an  affidavit,  (the 
perfect  tense  of  the  verb  affido,)  being  a  voluntary  oath  before  some  judge  or 
officer  of  the  court,  to  evince  the  truth  of  certain  tacts,  upon  which  the  motion 
is  o-rounded  :  though  no  such  affidavit  is  necessary  fur  payment  of  money 
into  court.  If,  after  the  money  paid  in,  the  plaintilF  proceeds  in  his  suit,  it 
is  at  his  own  peril  :  for,  if  he  does  not  prove  more  due  than  is  so  paid  into 
court,  he  shall  be  nonsuited  and  pay  the  defendant  costs  ;  but  he  shall  still 
have  the  money  so  paid  in,  for  the  defendant  has  acknowledged  that  to  be 
his  due.  To  this  head  may  also  be  referred  the  practice  of  what  is  called 
a  set-off:  whereby  the  defendant  acknowledges  the  justice  of  the  plaintiff's 
demand  on  the  one  hand;  but  on  the  other  sets  up  a  demand  of  his  own, 
to  counterbalance  that  of  the  plaintiff,  either  in  the  whole  or  in  part :  as,  if 
the  plaintiff  sues  for  ten  pounds  due  on  a  note  of  hand,  the  defendant  may 
set  off  nine  pounds  due  to  himself  for  merchandise  sold  to  the  plaintiff, 
and  in  case  he  pleads  such  set-off,  must  pay  the  remaining  balance  into 
court." 

It  must  be  observed,  however,  that  whether  the  defendant  confesses  or 
denies  the  charge  of  the  declaration,  his  plea  must  be  a  full  answer  to  the 
whole  declaration.  Thus  he  may  confess  the  whole  without  a  tender,  and 
then  judgment  will  be  entered  for  the  plaintiff's  demand ;  or  he  may  con- 
fess the  whole  and  plead  a  tender,  and  bring  the  money  into  court ;  or  he 
may  confess  the  action  as  to  part  and  deny  it  as  to  part ;  but  if  he  does  not 
make  defence  against  the  whole  declaration  the  plaintiff  may  take  judg- 
ment for  the  part  undefended  ;  and  if  he  defends  for  the  whole  and  sets 
forth  matter  which  shews  him  to  be  discharged  only  as  to  part,  the  plaintiff 
may  demur  to  his  plea,  because  the  facts  alleged  in  the  plea  do  not  sustain 
the  defence  he  has  set  up. 

Pleas  that  totally  deny  the  cause  of  complaint  are  called  pleas  in  bar, 
and  arc  either  the  general  issue,  or  a  special  plea. 

1.  "The  general  issue,  or  general  plea,  is  what  traverses,  thwarts,  and 
denies  at  once  the  whole  declaration ;  without  offering  any  special  matter 
whereby  to  evade  it.  As  in  trespass  either  vi  et  armis,  or  on  the  case,  non 
cidpabilis,  not  guility  ;  in  debt  upon  contract,  nihil  debet,  he  owes  nothing  ; 
in  debt  on  bond  or  in  covenant  non  est  factum,  it  is  not  his  deed ;  on  au 
assumpsit,  non  assumpsit,  he  made  no  such  promise  ;  in  detinue,  non  deti- 
net ;  and  in  replevin,  7wn  cepit.  Or  in  real  actions,  nul  tort,  no  wrong 
done  ;  nul  disseisin,  no  disseisin  ;  and  in  a  writ  of  right,  the  mise  or  issue 
is,  that  the  tenant  has  more  right  to  hold  than  the  demandant  has  to  de- 
mand. These  pleas  are  called  the  general  issue,  because,  by  importing  an 
absolute  and  general  denial  of  what  is  alleged  in  the  declaration,  they 
amount  at  once  to  an  issue  :  by  which  we  mean  a  fact  affirmed  on  one  side 
and  denied  on  the  other. 

"  Formerly  the  general  issue  was  seldom  pleaded,  except  when  the  party 
meant  wholly  to  deny  the  charge  alleged  against  him.  But  when  he  meant 
to  distinguisli  away  or  palliate  the  charge,  it  was  always  usual  to  set  forth 
the  particular  facts  in  what  is  called  a  special  plea ;  which  was  originally  in- 
tended to  apprise  the  court  and  the  adverse  party  of  the  nature  and  circum- 
stances of  the  defence,  and  to  keep  the  law  and  the  fact  distinct.  And  it 
is  an  invariable  rule,  that  every  defence  which  cannot  be  thus  specially 
pleaded,  may  be  given  in  evidence  upon  the  general  issue  at  the  trial.  But 
the  science  of  special  pleading  having  been  frequently  perverted  to  the  pur- 
poses of  chicane  and  delay,  the  courts  have  of  late  in  some  instances,  and 
the  legislature  in  many  more,  permitted  the  general  issue  to  be  pleaded, 
which  leaves  every  thing  open,  the  fact,  the  law,  and  the  equity  of  the  case  : 
and  have  allowed  special  matter  to  be  given  in  evidence  at  the  trial.  And, 
though  it  should  seem  as  if  much  confusion  and  uncertainty  would  follow 


CHAP.  15.]  OF  PLEADING.  25f 

from  so  great  a  relaxationi  of  the  strictness  anciently  observed,  yet  experi- 
ence has  shewn  it  to  be  otherwise ;  especially  with  the  aid  of  a  new  trial, 
in  case  either  party  be  unfairly  surprised  by  the  other. 

2.  "Special  pleas,  in  bar  of  the  plaintifTs  demand,  are  very  various,  aft- 
cording  to  the  circumstances  of  the  defendant's  case.  As,  in  real  actions, 
a  general  release  or  a  fine,  both  of  which  may  destroy  and  bar  the  plaintiff's 
title.  Or,  in  personal  actions,  an  accord,  arbitration,  conditions  perform- 
ed, nonage  of  the  defendant,  or  some  other  fact  which  precludes  the  plain- 
tiff from  his  action.  A  justification  is  likewise  a  special  plea  in  bar  ;  as  in 
actions  of  assault  and  battery,  son  assault  demesne,  that  it  was  the  plaintiff^s 
own  original  assault;  in  trespass,  that  the  defendant  did  the  thing  com- 
plained of  in  right  of  some  office  which  warranted  him  so  to  do;  or,  in  an 
action  of  slander,  that  the  plaintiff  is  really  as  bad  a  man  as  the  defendant 
said  he  was." 

Also  a  man  may  plead  the  statutes  of  limitation  in  bar;  or  the  time  lim- 
ited by  law  beyond  which  the  plaintiff  cannot  lay  his  cause  of  action.  This 
by  the  act  1830,  ch.  30,  is  in  all  writs  o^  formedon,  twenty  years  next  after 
the  cause  of  action  accrued  ;  in  writs  of  right,  twenty-five  years  where  the 
demandant  rests  upon  the  seisin  of  his  ancestor,  and  twenty  years  where 
he  relies  on  his  own  seisin ;  in  other  possessory  actions,  on  the  seisin  of 
the  ancestor  twenty-five  years,  and  on  the  party's  own  seisin  twenty  years  j 
in  trespass  quare  clausum,  and  in  trespass,  detinue,  trover,  and  replevin,  as 
also  in  actions  of  assumpsit,  debt  upon  simple  contract,  and  actions  on  the 
case  except  for  slander,  five  years  :  in  actions  of  assault  and  battery,  wound- 
ing and  imprisonment,  three  years;  in  slander,  one  year;  in  actions  on 
store  accounts  for  goods  sold  and  delivered,  one  year;  and  in  actions  on 
penal  statutes  one  year.     1  R.  C.  ch.  169,  §  60^ 

"The  use  of  these  statutes  of  limitation  is  to  preserve  the  peace,  and  to 
prevent  those  innumerable  perjuries  which  might  ensue,  if  a  man  were  al- 
lowed to  bring  an  action  for  any  injury  committed  at  any  distance  of  time< 
Upon  both  these  accounts  the  law  therefore  holds,  that  '  interest  reipuUicae 
ut  sit  finis  litium  :'  and  upon  the  same  principle  the  Athenian  laws  in  gen- 
eral prohibited  all  actions  where  the  injury  was  committed  five  years  before 
the  complaint  was  made.  If  therefore  in  any  suit,  the  injury  or  cause  of 
action  happened  earlier  than  the  period  expressly  limited  by  law,  the  de- 
fendant may  plead  the  statutes  of  limitation  in  bar:  as  upon  an  assumpsit, 
or  promise  to  pay  money  to  the  plaintiff,  the  defendant  may  plead  non  aS" 
sumpsit  infra  quinque  annos ;  he  made  no  such  promise  within  five  years  J 
which  is  an  effectual  bar  to  the  complaint. 

"  An  estoppel  is  likewise  a  special  plea  in  bar;  which  happens  where  a 
man  hath  done  son>e  act,  or  executed  some  deed,  which  estops  or  precludes 
him  from  averring  any  thing  to  the  contrary.  As  if  tenant  for  years  (who 
hath  no  freehold)  levies  a  fine  to  another  person.  Though  this  is  void  as 
to  strangers,  yet  it  shall  work  as  an  estoppel  to  the  cognizor  ;  for  if  he  af- 
terwards brings  an  action  to  recover  these  lands,  and  his  fine  is  pleaded 
against  him,  he  shall  thereby  be  estopped  from  saying  that  he  had  no  free- 
hold at  the  time,  and  therefore  was  incapable  of  levying  it." 

From  the  definition  of  estoppels,  and  from  the  instances  which  are  given 
of  them  in  the  books,  it  is  obvious  that  they  shut  up  all  inquiry,  and  though 
they  seem  in  some  instances  necessary  to  put  an  end  to  litigation,  yet  they 
often  prevent  a  party  from  making  a  just  defence,  which  but  for  the  estop- 
pel it  would  be  in  his  power  to  make.  In  short,  in  the  quaint  language  of 
the  ancient  law,  they  conclude  a  man  to  allege  the  truth,  and  they  are 
therefore  deservedly  odious  in  law,  (Co.  Littr  352,)  and  entirely  disregard* 
ed  in  equity. 

toL.  2—33 


253  OF  PLEADIN&.  \i  BOOK  3. 

Estoppels  may  either  be  by  matter  of  record,  as  an  admission  in  plead- 
inf,  putting  in  bail  by  a  wrong  name,  &c. ;  or  by  deed,  as  a  bond,  the  con- 
sideration of  which  cannot  be  inquired  into  at  law  ;  or  by  matter  in  pais, 
as  entry  and  acceptance  of  an  estate,  or  an  acceptance  of  rent,  and  the 
like.* 

Various  rules  are  laid  down  to  prevent  this  doctrine  working  injustice. 
Thus  :  a  mere  recital  does  not  work  an  estoppel  in  a  deed  :  strangers  can 
take  no  advantage  of  an  estoppel,  nor  shall  they  be  bound  by  it ;  though 
privies  in  blood  or  in  estate  shall.  Estoppels  shall  be  mutual  and  bind  both 
parties,  or  they  shall  bind  neither  :  they  are  never  taken  notice  of  unless 
relied  on  in  the  pleading,  and  they  must  be  pleaded  with  the  greatest  cer- 
tainty, or  what  is  called  certainty  to  every  intent.  See  1  Chitiy,  237.  Bac. 
Pleading  I.   11.     Estoppel  against  estoppel  leaves  the  matter  at  large. 

When  the  party  pleads  or  replies  an  estoppel,  he  should  not  tender  an 
issue  or  conclude  as  in  other  pleas.  He  should  conclude,  relying  on  the 
estoppel,  with  a  prayer  of  judgment,  whether  the  party,  against  his  own 
acknowledgment,  should  be  permitted  to  plead  or  allege  what  is  set  forth 
by  him  ;  if  he  concludes,  as  in  case  of  a  plea,  without  relying  on  the  es- 
toppel, he  will  lose  the  benefit  of  it.     1  Saun.  325,  n.  4,     Chitty,  617. 

If  the  other  party  denies  that  the  estoppel  concludes  him,  he  demurs,  as 
in  Carthew,  65.  3  E.  318,  351.  6  T.  R.  62.  Willes,  10.  If  there  is 
matter  to  avoid  it,  he  replies  or  rejoins,  as  in  1  Saun.  257. 

Special  pleas  are  usually  in  the  affirmative,  sometimes  in  the  negative. 
"When  they  advance  some  new  fact  not  mentioned  in  the  declaration  they 
must  be  averred  to  be  true  in  the  common  form,-—"  and  this  he  is  ready  to 
■verify;"  but  it  is  not  necessary,  though  usual,  to  conclude  negative  pleas 
thus ;  for  a  negative  cannot  be  proved.  Steph.  438,  439.  Co,  Litt.  303. 
Nor  is  this  necessary  in  pleas  of  the  general  issue  ;  those  always  contain- 
ing a  total  denial  of  the  facts  before  advanced  by  the  other  party,,  and 
therefore  putting  him  upon  the  proof  of  them. 

"  The  conditions  and  qualities  of  a  plea  (which,  as  well  as  the  doctrine 
of  estoppels,  will  also  hold  equally,  mutatis  mutandis,  with  regard  to  other 
parts  of  pleading)  are,  1.  That  it  be  single  and  containing  only  one  mat- 
ter ;  for  duplicity  begets  confusion."  This  rule  applies  to  the  declaration 
as  well  as  to  the  subsequent  pleadings.  Its  meaning  is,  that  the  declara- 
tion must  not,  in  support  of  a  single  demand,  allege  several  distinct  mat- 
ters, by  any  one  of  which  that  demand  is  sufficiently  supported.  As  if  in 
assumpsit  a  quantum  meruit  and  an  indebitatus  assumpsit  for  the  same  work 
and  labour  be  laid  in  the  same  count.  Yet  notwithstanding  this  rule,  there 
may  be  several  counts,  as  we  have  already  seen,  all  constituting  together 
one  declaration.  But  in  these  several  counts,  the  allegations  in  each  are 
kept  separate  and  distinct;  they  purport  to  be  for  different  claims,  and  the 
indebtedness  in  each  is  carefully  set  forth  to  be  for  "  another"  sum  of  mo- 
ney, and  not  for  that  set  forth  in  a  preceding  count.  The  purpose  of  these 
several  counts  is  to  enable  the  plaintifl'  to  adapt  his  case  to  the  evidence 
as  it  may  turn  out.  -For  this  end,  the  same  state  of  facts  are  differently 
represented  in  the  different  counts.  Thus  in  an  action  for  goods  sold  at 
a  certain  agreed  price,  I  should  demand  by  one  count  the  stipulated  sum. 
But  as  I  may  possibly  fail  to  prove  that  any  price  was  agreed  on,  I  must 
add  a  fjuantum  valebant,  under  which,  if  no  agreed  price  be  proved,  I  may 
recover  what  they  were  reasonably  worth.  And  it  may  be  useful  to  ob- 
serve here,  that,  on  this  principle,  the  four  following  counts,  or  some  of 
them,  are  usually  inserted,  viz.  :  those  for  money  lent  and  advanced ; — for 

*  Ab  to  eeloppelg,  and  admissioiiB  wliicli  niav  oi)erate  as  such,  see  1  Snun.  on  PI.  and  Ev.  44  ptt 
Mm'-.J  Slarkip.  part  ),:jf)a.  yiaikie.  p,4i  I  4,  Ct..  :^.  3  E.  36j.  tl  Barn.  iSo  Aid.  G6'2.  I  ii»nn.  WS- 
M.  i.    H»b.  'm.  'M. 


CHAP.  15.]  or  PLEADING.  259 

money  paid,  laid  out,  and  expended  ; — for  money  had  and  received,  and 
for  money  due  on  an  account  stated,  which  are  usually  called  the  money 
counts.  This  is  done,  because  it  often  happens  that  when  the  special  counts 
cannot  be  proved,  the  cause  of  action  will  resolve  itself  into  one  of  these 
general  pecuniary  forms  of  demand,  and  thus  the  plaintiff's  evidence  may 
fit  them  and  give  him  a  verdict  on  one  of  them,  though  lie  fails  as  to  all 
the  rest.  So,  too,  the  same  statement  of  facts  may  be  varied  by  omitting 
in  one  count  some  matter  stated  .in  another.  In  such  a  case,  the  more  spe- 
cial count  is  used  lest  the  omission  should  render  the  other  insufficient  in 
point  of  law  ;  the  more  general  is  adopted,  because  if  good  in  point  of  law, 
it  will  relieve  the  plaintiff  from  proving  such  omitted  matter  in  point  of 
fact.  If  the  defendant  demur  to  the  more  general  count  and  take  issue  on 
the  special  count,  the  plaintiff  has  a  chance  of  succeeding  on  both.  If  the 
defendant  do  not  think  proper  to  demur,  but  takes  issue  on  both,  the  plain- 
tiff will  have  no  occasion  at  the  trial  to  rely  on  the  special  count,  but  will 
succeed  by  merely  proving  that  which  is  general,  unless  under  our  act  the 
court  upon  motion  of  the  defendant  directs  the  jury  to  disregard  it  as  faulty. 
See  Steph.  287. 

With  respect  to  the  subsequent  pleadings,  the  meaning  of  the  rule  is, 
that  none  of  them  shall  contain  several  distinct  answers  to  that  which  pre- 
ceded it;  and  the  reason  is,  that  it  would  lead  to  several  issues  on  the  same 
plea,  replication,  8cc.,  and  thus  beget  confusion.  Thus  to  debt  on  bond,  if 
the  defendant  pleaded  non  est  factum  and  a  release  in  the  same  plea,  it 
would  offend  against  two  established  rules  ;  for  it  would  be  both  double  and 
inconsistent;  double,  because  either  allegation  would  be  a  sufficient  bar; 
and  inconsistent  because  the  allegation  of  a  release  admits  the  original  va- 
lidity of  the  bond  which  the  non  est  factum  denies.  And  even  though  the 
release  be  badly  pleaded,  (as,  without  setting  forth  that  it  was  under  seal,) 
the  plea  is  still  double,  for  the  plea  of  a  release  offers  a  material  issue,  and 
if  issue  be  joined  upon  it  the  exception  to  its  informality  could  not  be 
made  after  verdict.  But  if  two  matters  be  pleaded  and  one  be  immaterial, 
that  does  not  render  the  plea  double,  for  no  good  issue  can  be  taken  on  an 
immaterial  plea,  though  it  may  be  ever  so  formally  pleaded,  and  we  must 
remember  that  the  objection  to  double  pleading  is  that  it  offers  more  than 
ane  subject  of  issue. 

Of  the  rule  that  forbids  duplicity  in  pleading,  there  are  several  modifica- 
tions. Thus,  if  th-ere  are  two  defendants,  each  might  always  have  -ple&ded 
distinct  matters  of  defence,  even  before  the  statute  which  allowed  the  de- 
fendant to  plead  as  many  pleas  as  he  deemed  advisable  :  but  here  observe, 
that  if  defendants  unite  in  their  plea,  they  cannot  sever  in  their  rejoinder 
or  other  later  stage  of  pleading.  So  too  in  covenant,  when  several  breaches 
are  assigned  in  the  declaration,  (which  is  not  regarded  as  duplicity,  since 
each  breach  goes  to  sustain  a  different  demand  for^damages,)  the  plea  not 
only  may,  but  ought  to  answer  to  the  whole,  otherwise  the  plaintitf  would 
take  judgment  by  nihil  dicit  for  so  much  as  is  not  answered.  Indeed, 
pleading  double  consists  in  offering  two  or  more  distinct  bars  in  the  same 
plea,  and  not  in  pleading  a  variety  of  matters,  all  of  which  go  together  to 
make  up  but  one  bar.  So  that  the  defendant  may  always  make  distinct  an- 
swers to  such  parts  of  the  declaration  as  set  forth  different  matters  of 
claim  or  complaint.  In  like  manner,  where  there  are  several  counts  in  the 
same  declaration,  those  being  in  effect  distinct  declarations,  distinct  pleas 
may  be  put  in  to  each  ;  or  the  defendant  may  plead  to  one,  and  demur  to 
anotlier;  and  thus  there  may  be  on  the  several  counts  a  severance  in  the 
subsequent  pleadings  and  the  production  of  several  issues.  But  ivhether 
one  or  more  issues  are  produced,  if  the  decision  in  law  or  fact  be  for  the 
plaintiff  on  any  one  or  more  counts,  he  is  entitled  to  judgment  pro  tanto, 


260  or  PLEADING.  [  BeOK  3. 

though  he  fail  as  to  the  remainder.  Lastly,  it  is  now  by  statute,  1  R.  C. 
ch.  128,  §  88,  provided  that  the  plaintiflT  in  replevin,  and  the  defendant  in 
all  other  actions,  may  plead  as  many  several  matters  whether  of  law  or  of 
fact  as  he  shall  think  necessary  for  his  defence :  and  this  though  the  de- 
fences be  inconsistent.  2  Mun.  101.  And  he  may  both  demur  and  plead 
to  the  declaration  or  to  the  same  count  in  the  declaration.  4  H.  &.  M.  277. 
Wliere  the  defendant  demurs  and  pleads,  the  demurrer,  however,  must  first 
be  decided.     1  Mun.  518.     5  Mun.  7. 

When  the  defendant  avails  himself  of  the  privilege  allowed  by  the  sta- 
tute, (which  in  Virginia  is  absolute,  and  not  dependant,  as  in  England,  upon 
the  leave  of  the  court,)  the  plaintiff  may  either  demur  to  all  the  pleas,  or 
demur  to  one,  and  reply  to  another,  or  make  several  replications  to  each. 
The  result  is  a  corresponding  severance  in  the  subsequent  pleadings  which 
are  thus  branched  out  into  different  ramifications,  leading  to  the  produc- 
tion of  several  issues,  and  never  becoming  (after  having  thus  branched  out) 
at  all  connected  with  each  other.  But  ivhethcr  one  or  more  issues  be  pro- 
duced, if  the  decision,  lohether  of  law  or  of  fact,  be  in  the  defendant' s  favour 
as  to  any  one,  he  is  entitled  to  judgment  in  respect  to  that  subject  of  de- 
mand to  ivhich  the  successful  plea  relates,  though  he  fail  as  to  the  remainder. 
And  if  the  successful  plea  was  pleaded  to  the  whole  declaration  he  is  entitled 
to  judgment  generally,  though  the  plaintiff  should  succeeed  as  to  all  the  other 
pleas.     Stephen,  292, 

It  may  not  be  improper  to  remark,  however,  that  the  statute  only  allows 
distinct  pleas  to  be  pleaded,  and  does  not  allow  the  duplicity  of  pleading 
several  distinct  and  complete  matters  of  defence  in  the  same  plea;  for  this 
is  as  erroneous  now  as  it  was  before  the  statute. 

A  corrollary  from  the  rule  we  have  been  considering  is,  that  there  cannot 
be  a  demurrer  and  issue  in  fact  to  the  same  matter,  and  this  is  an  invari- 
able rule  except  (with  us)  in  the  case  of  the  defendant's  answer  to  the  de- 
claration. He  is  permitted,  under  the  words  of  our  act,  to  demur  and 
plead;  but  the  plaintiff  cannot  demur  and  reply,  nor  can  the  defendant  de- 
mur and  rejoin  ;  for  this  provision  of  the  statute  does  not  extend  to  the 
pleadings  subsequent  to  the  plea.     1  Ran.  Lang  vs.  Lewis. 

2.  "Pleadings  must  be  direct  and  positive  and  not  argumentative;"  that 
is  to  say,  the  allegation  of  fact  must  be  in  a  direct  and  absolute  form,  and 
must  not  be  left  to  be  collected  by  inference  and  argument  only,  however 
inevitable  such  inference  may  seem  to  be.  Thus,  in  trespass  de  bonis  as- 
portatis,  it  is  no  good  plea  to  say  that  the  plaintiff  never  had  any  goods, 
though  it  is  an  infallible  argument,  that  if  so  the  defendant  could  not  be 
guilty.  The  plea  should  be  not  guilty,  or  that  the  property  of  the  goods 
was  hi  the  defendant  or  in  a  third  person.  It  is  from  this  rule  inferred,  that 
neither  two  affirmatives  nor  two  negatives  make  an  issue.  Thus,  if  in  plead- 
ing, I  allege  that  A  died  seized  in  fee,  and  my  adversary  replies  that  he  died 
seized  in  tail,  this  is  not  a  good  issue ;  for  the  seizin  in  fee  is  only  denied 
by  argument  or  inference  ;  there  should  be  added  a  traverse  "  without  that 
I  was  seized  in  fee"  which  would  constitute  a  direct  denial.  So  if  I  al- 
lege that  I  demanded  an  abstract  of  title  of  the  plaintiff,  which  he  failed  to 
deliver,  he  should  not  reply  argumentatively  that  he  did  not  fail,  but  direct- 
ly that  he  did  deliver.     G  E.  557. 

3.  Pleadings  must  have  convenient  certainty  of  time,  place,  persons, 
quantity,  value,  and  the  like  :  yet,  as  the  proof  in  many  cases  need  not 
correspond  with  the  allegation,  there  seems  to  be  little  reason  in  the  rule 
in  such  cases,  and,  accordingly,  the  omission  is  cured  by  the  statute  of  Jeo- 
fails. 

This  certainty  is  principally  required  to  enable  your  adversary  to  under- 
stand what  is  to  be  proved  on  your  part,  that  he  may  prepare  himself  to  com' 


CHAP.  15.]  OF  PLEA  DING.  261 

bat  the  allegation  by  the  necessary  proof;  though  other  reasons  seem  to 
have  formerly  prevailed  for  the  establishment  of  this  rule.  Steph.  297- 
Th  us, 

1.  As  to  place.  The  declaration,  as  we  have  seen,  must  lay  are/me,  i.  e.  set 
forth  the  scene  or  i)lace  of  the  transaction  ;  and  this  must  still  be  truly  laid 
•in  real  actions,  though,  since  the  change  in  the  constitution  of  juries,  in 
actions  of  a  transitory  character,  in  which  the  locus  in  quo  is  immaterial,  the 
place  is  not  traversable  and  the  declaration  may  therefore  lay  it  in  any  coun- 
ty the  plaintiff  pleases.  The  same  rule  applies  to  the  i)lea  and  subsequent 
proceedings  with  a  slight  modification;  local  facts  must  be  laid  truly;  but 
transitory  facts  must  be  laid  in  the  county  where  the  venue  is  laid  by  the 
plainti(f,  and  not  where  the  defendant  pleases. 

2.  As  to  time.  In  personal  actions  the  pleadings  must  allege  the  fiine  of 
the  transaction,  and  when  a  continuando  is  laid,  the  duration  must  be  shewn. 
Moreover  the  time  laid  must  neither  be  impossible  nor  inconsistent  with  the 
fact  laid.  But  this  rule  does  not  apply  to  matters  of  inducement  merely, 
or  to  facts  that  are  not  traversable.  And  though  the  time  must  be  laid, 
another  and  different  time  may  be  proved,  provided  it  be  laid  under  a  vide- 
Jicit,  thus  ;  "for  that  the  said  C  D  heretofore,  to  wit,  on  the  Jst  of  Janua- 
ry, 1830;"  and  provided  also  the  time  does  not  form  a  material  point  in  the 
merits  of  the  case.  Thus  in  usury,  the  time  of  the  forbearance,  and  of 
course  the  day  from  whence  the  forbearance  began  to  run,  is  material ;  and 
though  laid  under  a  videlicit  it  must  be  proved  as  laid.  6  T.  R.  463.  5 
Taun.  2.     Cow.  671. 

3.  As  to  quantity  and  value.  These  should  be  laid,  in  general,  in  actions 
of  trespass  de  bonis  asportatis,  in  detiiiue,  trover,  and  trespass  for  injury  to 
goods  ;  and  care  should  be  taken  to  lay  enough  in  quantity,  or  number  and 
value  ;  for  though,  as  in  relation  to  time  and  place,  so  in  relation  to  quan- 
tity and  value,  it  is  not  necessary  that  the  proof  should  correspond  with  the 
averment,  unless  where  it  forms  part  of  the  merits  of  the  case,  yet  a  judg- 
ment cannot  in  general  be  rendered  upon  a  verdict  obtained  for  a  larger 
quantity  or  value  than  is  alleged.  An  allegation  of  quality  generally  re- 
quires to  be  strictly  proved  as  laid.     Steph.  319. 

4.  As  to  persons.  The  names  of  the  parties  to  the  suit  must  be  truly 
stated  :  though  an  error  herein  is  only  matter  in  abatement,  and  cannot 
avail  at  the  trial,  or  on  a  plea  in  bar.  The  names  of  third  persons  must  be 
truly  stated,  if  known,  and  a  variance  is  fatal  at  the  trial.  If  the  name  be 
jiot  known,  it  must  be  so  alleged. 

5.  When  in  pleading  any  right  or  authority  is  set  up  in  respect  of  pro- 
perty, real  or  personal,  some  title  must  be  alleged  in  the  party  or  in  him 
from  whom  he  claims  authority  ;  and  the  proof  must  correspond  with  the 
allegation.  On  this  subject,  the  student  may  advantageously  consult  Steph. 
321. 

6.  Where  the  party  justifies  under  a  writ,  warrant,  precept,  or  other  au- 
thority, he  must  set  it  forth  particularly  in  pleading  and  prove  it  accordingly. 

7.  Whatever  is  alleged  in  pleading,  must  be  alleged  with  sufficient  cer- 
tainty. The  object  of  this  is  to  enable  the  adversary  to  understand  the  pre- 
cise character  of  the  demand  or  defence,  and  to  narrow  the  issue  to  the 
point  really  in  dispute.  Thus  in  an  action  of  covenant,  it  is  not  sufficient 
to  allege  that  the  defendant  had  broken  his  covenant,  but  the  plaintiff"  must 
proceed  to  assign  the  breaches  ;  i.  e.  to  set  forth  wherein  the  covenant  was 
broken  :  for  otherwise  the  defendant  might  be  driven  to  the  necessity  of 
incurring  expense  and  trouble  in  defending  himself  upon  points  not  really 
in  dispute  ;  and  after  all  might  mistake  or  misapprehend  the  particular 
grievance  complained  of.  Yet  with  respect  to  this  rule  which  requires  cer- 
vtainty  in  the  allegations  of  the  parties,  these  liiaaitations,  it  is  said,  must  be 


262  OF  PLEADING.  [  book  3. 

observed  ; 1-  That  it  is  unnecessary  to  state  what  is  merel)'  matter  of  evi- 
dence; or  2.  Facts  of  which  tlie  court  takes  notice  ex  officio,  [see  2  Chit- 
ty's  Black.  231,  in  note,]  or  3.  Facts  which  would  more  properly  come 
from  the  other  side  ;  or  4.  Facts  which  are  more  in  the  knowledge  of  the 
opposite  party  ;  or  5.  Matters  which  are  necessarily  implied  ;  or  (j.  Which 
the  law  will  presume  ;  such  as  a  party's  innocence  of  fraud  or  crime ;  nor 
7.  Is  greater  particularity  required  than  the  nature  of  the  thing  to  which 
the  plea  relates,  will  conveniently  admit ;  and  8.  A  general  mode  of  plead- 
ino-  is  allowed  where  great  prolixity  is  thereby  avoided  ;  or  9.  Where,  from 
the  nature  of  the  case,  the  allegation  on  the  other  side  must  reduce  the 
matter  to  certainty.  10.  Less  particularity  is  required,  in  stating  matter  of 
indueement  or  aggravation,  than  in  the  main  allegations.  11.  With  re- 
spect to  acts  valid  at  common  law,  but  regulated  as  to  the  mode  of  per- 
formance by  statute,  it  is  suflicient  to  use  such  certainty  of  allegation  as 
sufficed  before  the  statute.     Steph.  348  to  375. 

4.  The  fourth  rule  which  I  shall  mention,  is,  that  the  plea  of  the  defen- 
dant shall  ansvv'er  the  plaintiffs  declaration  in  every  material  point ;  and  in 
like  manner  as  to  the  subsequent  pleadings,  each  must  be  an  answer  to  the 
whole  of  that  v.-hich  is  previously  adversely  alleged.  Thus  in  covenant 
where  several  breaches  are  set  forth,  if  the  defendant  does  not  plead  per- 
formance generally,  (which  would  be  an  answer  to  the  whole,)  but  pleads 
performance  as  to  one  matter  only  and  leaves  the  breach  as  to  another  un- 
answered, the  plaintiff  would  take  judgment  by  nil  dicit  as  to  this  last,  and 
demur  or  reply  as  to  the  remainder.  So  in  trespass  for  cutting  two  hun- 
dred trees,  if  the  defendant  defends  as  to  one  hundred  only,  and  justifies  as 
to  them  without  answering  as  to  the  other  hundred,  the  plaintiff  might 
tcke  judgment  for  this  hundred,  and  have  an  inquiry  of  damages  thereupon 
and  demur  or  reply  to  the  justification  as  to  the  other.  And  here  the  dis- 
tinction must  be  observed  between  professing  to  answer  as  to  the  whole, 
(i.  e.  denying  the  plaintiff's  action  altogether  in  the  commencement  of  the 
plea  thus:  "  and  the  said  defendant  by  his  attorney  comes  and  defends  the 
Vv'rong  and  injury  when,  &c.  and  says  that  the  said  plaintiff,  his  action  afore- 
said, ought  not  to  have  against  him,"  &c.)  and  making  defence  or  profes^ 
sing  to  answer  only  as  to  part ;  (that  is,  only  denying  in  part  the  plaintiffs 
right  to  sue,  thus:  "and  the  said  defendant  as  to  one  hundred  dollars,  part 
of  the  debt  in  the  declaration  mentioned,  saith,  that  the  said  plaintiff,  his 
action  thereof  against  him  ought  not  to  have  and  maintain,"  &.c,) — For  if 
the  defendant  professes  to  answer  as  to  the  whole,  and  then  sets  forth  facts 
which  only  sustain  this  general  defence  in  part,  his  plea  is  bad ;  and  the 
plaintiff  should  demur ;  and  if  he  does  so  he  will  have  judgment.  But  if 
the  defendant  professes  to  answer  only  as  to  part,  and  then  sets  forth  facts 
to  sustain  not  that  only,  but  more,  the  plaintiff  may  yet  take  judgment  for 
all  not  professedly  answered  to.  On  the  other  hand,  if  instead  of  doing  this 
he  demurs,  he  thereby  discontinues  his  action,  for  the  plea  is  good  as  far  as 
it  goes  and  is  not  therefore  demurrable  ;  but  not  having  answered  to  the 
whole  demand  there  was  nothing  to  impede  the  plaintiff  for  the  residue  ; 
and  his  failure  to  proceed  to  judgment  is  a  discontinuance.  Yet  the  error, 
it  is  said,  will  be  cured  after  verdict.     Step.  233. 

Again,  it  is  a  rule  that  every  pleading  is  taken  to  confess  such  traversable 
matters  alleged  on  the  other  side,  as  it  does  not  traverse.  Thus  in  covenant, 
a  plea  of  a  release  admits  the  execution  of  the  indenture  of  covenant,  as  it 
does  not  traverse  it.  The  effect  of  this  admission  is  extremely  strong;  for 
it  concludes  the  party  in  that  suit,  so  that  the  jury  cannot  find  against  it, 
and,  moreover,  it  is  conclusive  of  that  fact  in  any  subsequent  action  be- 
tween the  same  parties.  Hence  has  arisen  the  protestation  in  pleading. 
When  the  pleader  passes  by,  without  traversing  it,  any  traversable  fact  and 


enAp.  15.]  or  PLEADING.  263 

at  the  same  does  not  wish  to  be  concluded  by  it  in  another  action,  he  makes 
collaterally  or  incidentally  to  his  main  pleading,  a  declaration  importing 
that  this  fact  is  untrue  ;  and  this  is  called  a  protestation  ;  and  though  it  has 
no  effect  upon  the  action  in  which  the  plea  is  jjleaded,  it  excludes  the  con- 
clusion against  the  pleader  in  anothtr  action.  For  the  farther  doctrines  as 
to  this  matter  the  student  may  consult  Mr.  Stephen's  lucid  essay. 

5.  A  fifth  rule  is  that  a  plea  must  admit  or  confess  the  fact  it  justifies. 
3  T.  R.  298.     1  Saund.  28. 

6.  A  traverse  or  denial  must  never  be  taken  on  an  immaterial  allegation  ; 
for  that  would  lead  to  an  immaterial  issue  ;  but  where  there  are  several  ma- 
terial allegations  the  party  may  traverse  which  he  pleases. 

7.  Pleadings  must  not  be  repugnant  nor  insensible  nor  ambiguous,  and  if 
there  be  two  meanings  the  least  favourable  to  the  pleader  is  to  be  adopted. 
Nor  should  any  pleading  present  a  negative  pregnant,  which  means  such  a 
form  of  negation  as  implies  an  affirmative. 

8.  Pleadings  should  not  be  in  the  alternative. 

9.  Nor  should  they  be  by  way  of  recital,  as  has  been  already  explained 
in  relation  to  declaring  with  a  quod  cum. 

10.  Pleadings  are  to  be  pleaded  according  to  their  legal  effect. 

11.  They  should  observe  the  known  forms  of  expression  in  the  most  ap- 
proved precedents,  and  should  have  the  formal  commencements  and  con- 
clusions. 

12.  A  pleading  which  is  bad  in  part  is  bad  altogether;  and  so  if  two 
plead  jointly  a  justification  which  does  not  appply  to  both,  it  will  avail 
neither.     They  should  in  such  case  sever  in  their  pleas. 

13.  Surplusage  is  to  be  avoided. 

14.  There  must  be  no  departure  in  pleading.  A  departure  is  when  the 
party  in  any  pleading  deserts  the  ground  that  he  took-  in  his  last  antece- 
dent pleading,  and  resorts  to  another.  Thus  in  debt  on  bond  conditioned 
to  abide  by  an  award.  Defendant  pleads  no  award;  plaintiff  replies  and 
sets  out  an  award,  and  the  defendant  then  rejoins  that  he  has  performed  the 
award.  This  is  a  departure  ;  for  the  rejoinder,  instead  of  supporting  the 
plea,  in  effect  admits  it  to  be  false.     Of  this  we  shall  again  speak  presently, 

15.  When  a  deed  is  alleged  under  which  the  party  claims,  or  justifies,  pro- 
fert  must  be  made. 

16.  All  affirmative  pleadings  which  do  not  conclude  to  the  country,  must 
conclude  with  a  verification. 

For  further  information  and  illustration  of  these  rules  Imust  content 
myself  with  referring  to  the  treatise  already  cited  more  than  once,  where 
the  subject  is  treated  in  a  most  masterly  manner. 

"  It  is  also  a  rule  in  pleading,  that  no  man  be  allowed  to  plead  spe-* 
cially  such  a  plea  as  amounts  only  to  the  general  issue,  or  a  total  denial  of 
the  charge;  but  in  such  case  he  shall  be  driven  to  plead  the  general  issue  in 
terms,  whereby  the  whole  question  is  referred  to  a  jury.  But  if  the  defendant, 
in  an  assise  or  action  of  trespass,  be  desirous  to  refer  the  validity  of  his  title 
to  the  court  rather  than  the  jury,  he  may  state  his  title  specially,  and  at  the 
same  time  give  colour  to  the  plaintiff,  or  suppose  him  to  have  an  appear- 
ance or  colour  of  title,  bad  indeed  in  point  of  law,  but  of  which  the  jury 
are  not  competent  judges.  As  if  his  own  true  title  be,  that  he  claims  by 
feoffment,  with  livery  from  A,  by  force  of  which  he  entered  on  the  lands  in 
question,  he  cannot  plead  this  by  itself,  as  it  amounts  to  no  more  than  the 
general  issue,  nul  tort,  nul  disseisin,  in  assise,  or  not  guilty  in  an  action  of 
trespass.  But  he  may  allege  this  specially,  provided  he  goes  farther  and 
says,  that  the  plaintiff  claiming  by  colour  of  a  prior  deed  of  feoffment  without 
livery  entered  ;  upon  whom  he  entered  ;  and  may  then  refer  himself  to  the 
judgment  of  the  court  which  of  these  two  titles  is  the  best  in  point  of  law.- 


264  OF  PLEADING.  [  DOOK  3. 

"When  the  plea  of  the  defenflant  is  thus  put  in,  if  it  does  not  amount 
to  an  issue  or  total  contradiction  of  the  declaration  but  only  evades  it,  the 
plaintift*  may  plead  again,  and  reply  to  the  defendant's  plea*  either  travers- 
ing it;  that  is,  totally  denying  it;  as  if  on  an  action  of  debt  upon  bond 
the  defendant  pleads  solvit  ad  diem,  that  he  paid  the  money  when  due,  here 
the  plaintiff  in  his  replication  may  totally  traverse  this  plea  by  denying  that 
the  defendant  paid  it:  or,  he  may  allege  new  matter  in  contradiction  to  the 
defendant's  plea;  as  when  the  defendant  pleads  no  award  made,  the  plain- 
tiff may  reply  and  set  forth  an  actual  award,  and  assign  a  breach:  or  the 
replication  may  confess  and  avoid  the  plea,  by  some  new  matter  or  distinc- 
tion consistent  with  the  plaintiff's  former  declaration  ;  as,  in  an  action  for 
trespassing  upon  land  whereof  the  plaintiff  is  seized,  if  the  defendant  shews 
a  title  to  the  land  by  descent,  and  that  therefore  he  had  a  right  to  enter, 
and  gives  colour  to  the  plaintiff,  the  plaintiff  may  either  traverse  and  totally 
deny  the  fact  of  the  descent ;  or,  he  may  confess  and  avoid  it,  by  replying, 
that  true  it  is  that  such  descent  happened,  but  that  since  the  descent  the 
defendant  himself  demised  the  lands  to  the  plaintiff  for  term  of  life. 

"To  the  replication  the  defendant  may reyoiw,  or  put  in  an  answer  called' 
a  rejoinder.  The  plaintiff  may  answer  the  rejoinder  by  a  sur-rejoinder : 
upon  which  the  defendant  may  rebut:  and  the  plaintiff  answer  him  by  a 
sur-rebuUer.  Which  pleas,  replications,  rejoinders,  sur-rejoinders,  rebut-- 
ters,  and  sur-rebutters,  answer  to  the  exceptio,  replicatio,  diiplicalio,  tripli-- 
catio,  and  quadruplicatio,  of  the  Roman  laws. 

"  The  whole  of  this  process  is  denominated  the  pleading  :  in  the  several 
stages  of  which  it  must  be  carefully  observed,  not  to  depart  or  vary  from  the 
title  or  defence,  which  the  party  has  once  insisted  on.  For  this  (which  is 
called  a  departure  in  pleading)  might  occasion  endless  altercation.  There- 
fore the  replication  must  support  the  declaration,  and  the  rejoinder  must 
support  the  plea,  without  departing  out  of  it.  As  in  the  case  of  pleading 
no  award  made,  in  consequence  of  a  bond  of  arbitration,  to  which  the 
plaintiff  replies,  setting  forth  an^  actual  award  ;  now  the  defendant  cannot 
?ejoin  that  he  hath  performed  this  award,  for  such  rejoinder  would  be  an 
entire  departure  from  his  original  plea,  which  alleged  that  no  such  award 
was  made :  therefore  he  has  now  no  other  choice,  but  to  traverse  the  fact 
of  the  replication,  or  else  to  demur  upon  the  law  of  it. 

"  Yet  in  many  actions  the  plaintiff,  who  has  alleged  in  his  declaration  a 
general  wrong,  may  in  his  replication,  after  an  evasive  plea  by  the  defend- 
ant, reduce  that  general  wrong  to  a  more  particular  certainty,  by  assigning 
the  injury  afresh  with  all  its  specific  circumstances  in  such  manner  as 
clearly  to  ascertain  and  identify  it,  consistently  with  his  general  complaint; 
which  is  called  a  new  or  novel  assignment.  As  if  the  plaintiff  in  trespass 
declares  on  a  breach  of  his  close  in  D  ;  and  the  defendant  pleads  that  the 
place  where  the  injury  is  said  to  have  happened  is  a  certain  close  of  pas- 
ture in  D,  which  descended  to  him  from  B  his  father,  and  so  is  his  own 
freehold  ;  the  plaintiff  may  reply  and  assign  another  close  in  D,  specifying 
the  abuttels  and  boundaries,  as  the  real  place  of  the  injury. 

"  It  hath  previously  been  observed  that  duplicity  in  pleading  must  be 

'As  to  the  severni  replications  in  general,  see  1  Chit,  on  P.  4  ed.  500  to  5IS;  and  as  to  their  forms 
and  parts  in  particular,  Id.  518  to  555.  The  general  qualities  of  a  replication  are,  that  it  mn.-t  answer 
the  plea,  and  answer  so  much  of  it  as  it  professes  to  answer,  or  it  will  be  a  discontinnance;  Com.  Dig. 
tu.  Pleader,  F.  4,  VV.  2.  1  Saund.  338;  and  it  mnst  answer  the  plea  directly,  not  argunientaiively;  10 
Last,  205;  it  inu.n  not  depart  from  tl-.e  declar.iiion.  2  Saund.  84,  a.  n.  1.  Co.  Lit.  304,  a.  2  Wils. 
98.  See  IChit.  on  PI.  55G  to  5G(J.  It  must  he  certain,  and  it  is  said  that  more  certainty  is  requisite  in 
a  replication  than  a  declaration,  though  certainty  to  a  common  intent  is  in  general  suflicieni;  Com. 
Dig.  Pleader,  F.  17.  12  East,  203;  and  histly,  itmnst  not  be  double,  or  in  others  words,  contain  two 
answers  to  the  same  pica;  10  East,  73.  2  Camp.  17(5, 177.  Com.  Dig.  Pleader,  F.  IG;  and  the  plaintiff 
cannot  reply  double  under  the  4  Ann.  c.  IG.  Fortes.  335,unless  in  replevin,2  B.  &  P.  368,  376;  and 
more  particularly  as  to  these  qualities,  see  1  Chit,  on  PI.55Gto5G2.  An  entire  replication  badinpait 
i»  bad  for  Iha  wholff.    Com.  Dig.  Pleader,  F.  25.    3  T.  11.370.    lSma<l.^,n.d.-Ckitty, 


CHAP.  15.]  OP  PLEADING.  265 

avoided.  Every  plea  must  be  Bimple,  entire,  connected,  and  confined  to 
one  single  point :  it  must  never  be  entangled  with  a  variety  of  distinct  in- 
dependent answers  to  the  same  matter  ;  which  must  require  as  many  dif- 
ferent replies,  and  introduce  a  multitude  of  issues  upon  one  and  the  same 
dispute.  For  this  would  often  embarrass  the  jury,  and  sometimes  the 
court  itself,  and  at  all  events  would  greatly  enhance  the  expense  of  the  par- 
ties. Yet  it  frequently  is  expedient  to  plead  in  such  a  manner  as  to  avoid 
any  implied  admission  of  a  fact,  which  cannot  with  propriety  or  safety  be 
positively  affirmed  or  denied.  And  this  may  be  done  by  what  is  called  a 
protestation,  which  has  been  already  explained. 

"  In  any  stage  of  the  pleadings,  when  either  side  advances  or  affirms  any 
new  matter,  he  usually  (as  was  said)  avers  it  to  be  true  ;  '  and  this  he  is 
ready  to  verify.'  On  the  other  hand,  when  either  side  traverses  or  denies 
the  facts  pleaded  by  his  antagonist,  he  usually  tenders  an  issue,  as  it  is 
called  :  the  language  of  which  is  different  according  to  the  party  by  whom 
the  issue  is  tendered  ;  for  if  the  traverse  or  denial  comes  from  the  defend- 
ant, the  issue  is  tendered  in  this  manner,  'and  of  this  he  puts  himself  up- 
on the  country,'  thereby  submitting  himself  to  the  judgment  of  his  peers; 
but  if  the  traverse  lies  upon  the  plaintiff,  he  tenders  the  issues,  or  prays  the 
judgment  of  the  peers  against  the  defendant  in  another  form  ;  thus:  '  and 
this  he  prays  may  be  inquired  of  by  the  country.'  "  And  when  either  party 
tenders  the  issue,  the  other  adds  "  and  the  said  plaintiff  [or  defendant  as 
the  case  may  be]  doth  so  likewise."  This  is  called  the  similiter  ;  the  en- 
try in  the  old  law  latin  having  been  "  et  prcedictus  querens  similiter."  Where 
there  is  a  special  plea  and  a  replication  tendering  an  issue,  to  make  up  a 
formal  issue  there  must  be  a  similiter  or  joining  of  issue  on  the  replication. 
If  the  defendant  does  not  choose  to  enter  the  similiter,  the  clerk  cannot 
do  it  against  his  will.  Ibid.  For  the  defendant  has  a  right  to  a  rule  to  re- 
join.    Gilmer,  228.     Sed  vide  Steph.  254,  and  2  Bing.  384. 

"But  if  either  side  (as,  for  instance,  the  defendant)  pleads  a  special  ne- 
gative plea,  not  traversing  or  denying  any  thing  that  was  before  alleged, 
but  disclosing  some  new  negative  matter ;  as,  where  the  suit  is  on  a  bond, 
conditioned  to  perform  an  award,  and  the  defendant  pleads  negatively, 
that  no  award  was  made,  he  tenders  no  issue  upon  this  plea;  because  it 
does  not  yet  appear  whether  the  fact  will  be  disputed,  the  plaintiff  not  hav- 
ing yet  asserted  the  existence  of  any  award  ;  but  when  the  plaintiff  replies, 
and  sets  forth  an  actual  specific  award,  if  then  the  defendant  traverses  the 
replication,  and  denies  the  making  of  any  such  award,  he  then,  and  not 
before,  tenders  an  issue  to  the  plaintiff.  For  when  in  the  course  of  plead- 
ing they  come  to  a  point  which  is  affirmed  on  one  side,  and  denied  on  the 
other,  they  are  then  said  to  be  at  issue  ;  all  their  debates  being  at  last  con- 
tracted into  a  single  point,  which  must  now  be  determined  either  in  favour 
of  the  plaintiff  or  of  the  defendant." 

An  issue  is  a  single,  certain,  and  material  point  issuing  out  of  the  alle- 
gation of  the  parties,  and  arising  fr(>m  an  affirmation  on  the  one  side,  and 
a  denial  on  the  other.  From  this  definition  may  be  deduced  the  essentials 
of  an  issue. 

1.  It  must  be  upon  a  single  point.  Thus  if  the  defendant  pleads  that 
he  requested  the  plaintiff  to  deliver  an  abstract  of  his  title,  which  the  plain- 
tiff refused,  the  issue  cannot  properly  be  made  up  both  on  the  request  and 
the  refusal ;  the  plaintiff  may  select  which  he  pleases,  and  reply  "  that  the 
defendant  never  requested  him,"  or  "that  he  did  deliver  it."  But  he  can- 
not reply  both,  and  if  he  does,  and  the  issue  is  made  up  on  both,  it  is  er- 
roneous, and  a  repleader  will  be  awarded. 

2.  It  must  be  certain  :  for  if  it  be  uncertain  what  is  the  point  in  dispute, 
the  dispute  never  can  be  fairly  tried. 

rot.  3—34 


<266  OV  PLEADING.  [  book  3. 

3.  It  must  be  material.  An  immaterial  issue  is  where  a  material  allega- 
tion is  not  denied  or  traversed,  but  an  issue  is  taken  on  some  other  point, 
which,  though  found  by  the  verdict,  would  not  determine  the  merits  of  the 
case,  but  would  leave  the  court  at  a  loss  to  determine  for  which  of  the  par- 
ties to  give  judgment.  2  Saun.  319,  n.  0.  In  such  case  it  is  obvious  there 
ouo-ht  to  be  a  repleader  ;  in  other  words,  the  verdict  must  be  set  aside  and 
the" parties  compelled  to  amend  their  pleadings  from  the  point  where  the 
first  error  was  committed. 

A  distinction,  however,  must  be  observed  between  an  informal  issue  up- 
on a  material  fact,  and  an  issue,  however  formally  joined,  on  an  immaterial 
fact ;  since  the  former  is  cured  by  the  statute  of  Jeofails,  whereas  the  latter 
is  not.     1  Chitty,  631.     See  1  Lev.  3-2. 

A  distinction  is  also  to  be  observed  where  the  issue  is  merely  immaterial, 
and  those  cases  in  which  a  defective  ground  of  defence  or  insufficient  mat- 
ter is  formally  stated.*  If  the  verdict  in  the  first  case  be  found  for  the  party 
committing  the  error,  it  may  be  set  aside  and  a  repleader  awarded  to  enable 
him  to  state  his  defence  in  a  proper  manner.  But  in  the  latter,  as  he  shews 
a  defective  defence,  and  yet  has  a  verdict  in  his  favour,  it  can  be  of  no  use 
to  award  a  repleader,  while  at  the  same  time  he  ought  not  to  have  judgment 
rendered  for  him  on  the  verdict.  The  judgment,  therefore,  is  entered 
against  him  at  once  non  obstante  veredicto,  (the  verdict  to  the  contrary  not- 
withstanding.)    1  Chitty,  634. 

If  the  defendant  be  sued  as  heir  and  devisee,  and  he  pleads  no  assets  by 
descent,  and  issue  is  joined,  this  is  an  immaterial  issue,  and  a  repleader 
should  be  awarded  ;  for  he  ought  also  to  have  confessed  or  denied  assets 
by  devise.     I  Call,  257. 

So  if  he  pleads  the  word  "justification  "  only,  the  plea  is  bad,  and  on  a 
verdict  in  his  favor  a  repleader  will  be  awarded,  for  he  ought  to  have  shewn 
how  he  justified.     2  Call,  379. 

So  non-assumpsit  within  five  years,  without  saying  "  next  before  the  in- 
stitution of  the  suit,"  relates  to  the  time  of  pleading,  and  not  to  the  institu- 
tion of  the  suit.  And  an  issue  joined  thereupon  is  immaterial ;  for  the  ma- 
terial question  is,  whether  the  party  assumed  within  five  years  before  ema- 
nation of  the  writ.     3  Call,  248. 

4.  There  must  be  an  affirmation  on  one  side  and  a  denial  on  the  other. 
To  constitute  this  there  must  be  a  joining  of  issue  between  the  parties,  al- 
though the  want  of  this  is  sometimes  cured  by  a  verdict.  Thus  if  there 
are  two  pleas  filed,  and  only  one  appears  to  be  joined,  a  verdict  rendered 
between  the  parties  will  be  set  aside.  See  4  Mun.  430.  2  Call,  514.  The 
addition  of  the  similiter  after  a  plea  which  imports  the  general  issue  is  ne- 
cessary to  complete  the  joinder  of  issue,  yet  the  omission  is  cured  by  a  ver- 
dict.    1  Wash.  363. 

"Issue,  exittis,  being  the  end  or  object  of  all  the  pleadings,  is  the  fourth 
part  or  stage  of  an  action,  and  is  either  upon  matter  of  law,  or  matter  of 
fact. 

"  An  issue  upon  matter  of  law  is  called  a  demurrer  :  and  it  confesses  the 
facts  to  be  true,  as  stated  by  the  opposite  party"  ;  so  far  as  they  are  sub- 
stantially well  pleaded;  "but  denies  that,  by  the  law  arising  upon  those 
facts,  any  injury  is  done  to  the  plaintiff,  or  that  the  defendant  has  made  out 
a  legitimate  excuse  ;  according  to  the  party  which  first  demurs,  demoratur, 
rests  or  abides  upon  the  point  in  question.  As,  if  the  matter  of  the  plain- 
tiffs complaint  or  declaration  be  insufficient  in  law,  as  by  not  assigning  any 
sufficient  trespass,  then  the  defendant  demurs  to  the  declaration  :  if,  on  the 
other  hand,  the  defendant's  excuse  or  plea  be  invalid,  as  if  he  pleads  that 
he  committed  the  trespass  by  authority  from  a  stranger,  without  making  out 

•  Sec  Tost,  Sm,  31},  310. 


CHAP.  15.]  OF  PLEADING.  267 

the  stranger's  right ;  here  the  plaintiff  may  demur  in  law  to  the  plea  :  and 
so  on  in  every  other  part  of  the  proceedings,  where  either  side  perceives 
any  material  objection  in  point  of  law,  upon  which  he  may  rest  his  case. 

"The  form  of  such  demurrer  is  by  averring  the  declaration  or  plea,  the 
replication  or  rejoinder,  to  be  insufficient  in  law  to  maintain  the  action  or 
the  defence  ;  and  therefore  praying  judgment  for  want  of  sufficient  matter 
alleged.  Sometimes  demurrers  are  merely  for  want  of  sufficient /orm  in 
the  writ  or  declaration."  But  as  these  exceptions  are  often  vexatious,  it 
has  been  enacted  that  where  a  demurrer  shall  be  joined  in  any  action,  the 
court  shall  not  regard  any  other  defect  or  imperfection  in  the  writ,  return, 
declaration,  or  pleading,  than  what  shall  be  specially  alleged  in  the  demur- 
rer, as  causes  thereof,  unless  something  so  essential  to  the  action  or  defence, 
as  that  judgment,  according  to  law  and  the  very  right  of  the  cause,  cannot 
be  given,  shall  be  omitted.  1  R.  C.  ch.  128,  §  101.  This  statute  does  not 
comprehend  demurrers  to  pleas  in  abatement.  ^  Hen.  &  Mun.  314.  2 
Maule  &  Sel.  485 ;  which  is  taken  from  the  27  Eliz.  ch.  5,  and  4  Ann,  ch. 
16.  This  provision  gives  rise  to  the  distinction  between  a  general  and  spe- 
cial demurrer.  A  general  demurrer  is  sufficient  where  the  objection  is  on 
matter  of  substance  ;  for  when  there  is  a  defect  in  substance,  there  must 
be  something  wanting,  so  essential  to  the  action  or  defence,  as  that  judg- 
ment cannot  be  given  according  to  the  very  right  of  the  cause,  in  favor  of 
the  party  whose  pleading  is  demurred  to.  But  where  the  objection  turns 
only  on  matter  of  form  ;  that  is,  where,  notwithstanding  the  objection, 
enough  appears  to  entitle  the  party  to  judgment  on  the  merits  of  the  cause, 
or,  as  the  statute  has  it,  according  to  the  very  right  of  the  case,  the  party 
demurring  must  specially  set  down  all  his  objections  at  the  foot  of  his  de- 
murrer; and  to  these  objections,  upon  the  argument  of  the  cause,  he  will 
be  strictly  confined,  unless  he  can  also  shew  matter  of  objection  in  point 
of  substance,  which  he  may  do,  whether  specially  set  forth  or  not.  Hence 
a  special  demurrer  has  the  effect  also  of  a  general  demurrer,  but  not  e  con- 
verso  ;  and  therefore,  in  cases  of  doubt,  the  special  demurrer  is  to  be  pre- 
ferred. 

A  defendant  may  demur  to  the  plaintiff's  declaration,  either  in  whole  or 
in  part.  If  there  are  several  counts  in  the  declaration,  some  of  which  are 
good,  he  should  demur  to  those  which  are  bad  only,  or  the  judgment  will 
be  against  him.  1  Saun.  286.  2  Saund.  380.  1  H.  &  M.  361.  And  so 
as  to  several  breaches,  some  of  which  are  well  laid.  1  Chitty,  643.  Yet 
where  there  is  an  improper  joining  of  actions  or  parties  in  the  suit,  the  de- 
murrer for  the  misjoinder  should  be  to  the  whole  declaration.  On  the  other 
hand,  however,  if  a  plea  be  bad  in  part,  it  is  bad  in  the  whole,  and  if  only 
demurred  to  in  [)art  by  the  plaintiff,  it  will  be  a  discontinuance.  Ibid.  2 
Saun.  124.     1  T.  R.  40.     3  T.  R.  376,  cited  1  Chitty,  643. 

The  ground  of  demurrer  must  appear  upon  the  face  of  the  pleadings  de- 
murred to;  so  that  v.'here  a  party  desires  to  demur  for  a  variance  between 
a  deed  and  the  description  given  of  it  in  the  declaration  or  plea,  he  must 
crave  oyer,  by  which  it  is  spread  on  the  record,  and  becomes  part  of  the 
plaintiff's  declaration,  and  not  of  the  defendant's  plea. 

A  party  should  not  demur  when  he  is  conscious  of  having  committed  the 
first  fault  in  pleading  ;  for  upon  the  argument  of  a  demurrer,  the  court  will, 
notwithstanding  the  defect  of  the  pleading  demurred  to,  give  judgment 
against  the  party  whose  pleading  was  first  defective  in  substance  ;  5  Cranch, 
257.  3  Cranch,  229.  Variance  on  oyer  is  matter  of  substance  ;  Idem ; 
but  this  rule  does  not  apply  to  mere  errors  in  point  of  form,  for  pleading 
over  aids  many  such  errors.     1  Chitty,  647.     Steph.  164. 

Though  on  demurrer  to  one  count  in  a  declaration  it  be  adjudged  bad, 
yet  the  plaintiff  may  proceed  to  trial  on  the  other  counts;  and  so  if  a  de- 
murrer be  to  one  of  several  pleas.    2  Call,  39,  374. 


268  OF  PLEADING.  [BOOK  3. 

A  defendant  may  plead  and  demur  at  the  same  lime  to  the  declaration. 
4  H.  &  M.  277.  But  a  plaintiff  cannot  reply  and  demur  to  the  same  plea. 
1  Ran.  281.  See  4  Mun.  466.  And  where  the  defendant  both  demurs 
and  pleads  to  the  declaration,  the  demurrer  should  be  first  tried.  2  Mun. 
518.  5  Mun.  1.  An  error  herein  is  not,  however,  sufficient  of  itself  to 
arrest  the  judgment.  If  the  demurrer  in  such  case  be  overruled,  the  court 
then  proceeds  to  try  the  issue  in  fact  upon  the  plea,  before  it  enters  up  a 
judgment.     2  Mun.  88. 

If  the  defendant  pleads  several  pleas,  and  the  plaintiff  demurs  to  one  of 
them,  and  the  demurrer  is  overruled,  judgment  final  goes  against  him  un- 
less he  has  leave  to  withdraw  his  demurrer. 

A  general  demurrer  is  an  issuable  plea  which  may  be  received  to  set  aside 
an  office  judgment.     4  H.  &  M.  277. 

Where  a  party  demurs  to  a  whole  declaration,  and  the  demurrer  is  over- 
ruled because  some  of  t^e  counts  are  good,  the  defendant  may  nevertheless 
move  the  court  to  direct  the  jury  to  disregard  the  faulty  count.  But  if  he 
fails  to  do  so,  and  the  verdict  is  general,  it  will  not  be  disturbed.  1  H.  &. 
M.  361. 

Before  the  provision  above  mentioned  in  the  act  1  R.  C.  ch.  128,  §  101, 
was  introduced,  a  party  might  demur  without  shewing  forth  his  objections. 
Now  they  are  specified  ;  and  if  his  adversary  perceives  that  the  objections 
are  valid,  or  even  if  the  court  has  adjudged  them  to  be  so,  he  asks  and 
usually  obtains  leave  to  amend  ;  1  Wash.  313.  See  2  Bac.  App.  354  ;  for 
the  very  intent  of  the  act  requiring  mistakes  in  form  to  be  shewn  for  cause 
of  demurrer,  was  to  give  the  party  an  opportunity  of  amending. 

So,  also,  if  a  party  demurs,  and  finds  the  opinion  of  the  court  is  likely  to 
be  against  him,  he  may  even  after  argument  obtain  leave  to  withdraw  his 
demurrer,  and  plead  or  reply  de  novo :  and  even  after  the  opinion  of  the 
court  has  been  pronounced  on  the  demurrer,  it  is  in  its  discretion  to  give 
leave  to  withdraw  it;  Sellon's  Prac.  340,  citing  Say.  312.  See  Tidd's 
Prac.  450,  655.  Doug.  385,  452  ;  and  such  leave  is  with  us  usually  given, 
though  there  are  cases  in  the  English  books  in  which  it  has  been  refused. 
1  E.  391.     1  Bur.  321.     See  2  B.  &  P.  482.     3  B.  &  P.  1 1,  12. 

In  the  United  States'  courts,  indeed,  it  has  been  decided  that  an  amend- 
ment to  a  plea  may  be  allowed  by  the  court  below,  after  the  plea  has  been 
on  demurrer  adjudged  to  be  bad,  and  the  judgment  has  been  affirmed  in 
the  court  of  error.  6  Cranch,  206.  In  this  case,  however,  the  cause  was 
in  court,  and  going  on,  on  other  pleadings.  Whether  upon  like  principles 
the  demurrant  would  have  leave  to  withdraw  the  demurrer  where  a  judg- 
ment against  him  has  been  affirmed,  was  not  decided. 

With  these  qualifications,  however,  it  may  be  remarked,  that  the  judg- 
ment on  demurrer  is  always  as  peremptory  as  if  it  had  been  rendered  upon 
a  verdict  found  on  an  issue  in  fact.  The  judgment  where  the  defendant 
has  demurred  and  his  demurrer  is  overruled,  or  where  on  the  plaintifl^'s  de- 
murrer his  plea.  Sec.  are  adjudged  bad,  and  he  does  not  obtain  leave  to 
amend,  is  not  that  he  shall  answer  over  (respondeat  ouster,)  but  it  is  that 
the  plaintiff  shall  recover.  So  too  the  judgment  against  the  plaintiff  on  a 
demurrer  is  equally  peremptory  and  final.     See  Tidd's  Prac.  478,  479. 

As  to  amendments  it  may  here  be  observed,  that  to  promote  justice,  ver- 
dicts have  been  set  aside  and  a  new  trial  granted  in  order  to  enable  a  plain- 
tiff to  amend  his  declaration.  7  T.  R.  132.  Clarke  vs.  Doster,  Winch. 
Sup.  Court.  Amendments  are  sometimes  made  in  small  matters  after  ver- 
dict without  a  new  trial.  See  Strange,  1151.  Comb.  4.  So  where  a  juror 
has  been  withdrawn  the  plaintiff  may  amend.     3  Call,  522. 

When  one  party  is  permitted  to  amend,  or  amends  without  leave,  the 
other  has  a  right  to  plead  de  novo,  whether  the  new  plea  be  material  to  the 


CHAP.  15.]  OF  PLEADING.  269 

defence  or  not.  1  Wash.  363.  But  if  he  does  not  amend,  and  proceeds 
to  trial  on  his  former  plea,  he  cannot  afterwards  demand  a  repleader.  2 
Call,  2-2. 

So  where  a  defendant  obtains  leave  to  amend  his  pleading,  he  has  his 
election  to  make  the  amendment  or  not ;  and  if  he  fail  to  make  it,  the  is- 
sue upon  the  plea  as  it  stood  must  be  tried,  and  the  leave  to  amend  is  con- 
sidered as  waived.     2  Call,  1. 

If  the  declaration  be  amended  by  consent,  after  issue  joined  on  a  plea 
to  the  action,  the  defendant  ought  not  to  be  permitted  to  plead  in  abate- 
ment any  variance  between  the  amended  declaration  and  the  writ  which 
equally  existed  between  the  writ  and  original  declaration.     3  Mun.  159. 

It  has  been  already  remarked  that  the  party  by  demurring  admits  the 
truth  of  all  such  facts  as  are  well  pleaded.  Upon  principles  of  fair  reason- 
ing, he  who  denies  that  certain  facts  have  the  legal  operation  for  which  an- 
other contends,  must  take  it  for  granted  \\\  the  argument  that  those  facts 
are  true.  In  like  manner,  and  in  consonance  with  these  principles,  a  de- 
murrer which  brings  a  matter  of  law  in  question,  is  construed  to  be  an  ad- 
mission or  confession  of  the  facts  demurred  to.  The  converse  of  the  pro- 
position is  equally  true,  so  that  he  who  takes  issue  upon  the  facts,  or  denies 
their  truth,  is  considered  as  admitting  upon  the  trial  of  the  issue,  their  suf- 
ficiency in  point  of  law.  Hence  if  a  defendant  demurs  to  the  plaintifl''s 
declaration,  and  it  is  adjudged  good,  the  court  does  not  then  proceed  to  in- 
quire whether  the  matters  alleged  in  it  are  true,  for  they  were  admitted  to 
be  so  by  the  demurrer,  but  it  proceeds  at  once  to  give  judgment  against  the 
defendant,  unless  he  has  some  other  plea  yet  remaining  to  be  tried.  It  is 
the  same  thing  where  the  defendant  demurs  to  the  replication  or  any  other 
part  of  the  pleadings  of  the  plaintiff,  and  his  demurrer  is  overruled.  So  if 
the  plaintiff  demurs  to  defendant's  plea,  he  admits  it  to  be  true,  and  if  the 
court  considers  it  good  in  law,  judgment  is  rendered  against  the  plaintiff 
without  inquiring  farther  into  the  truth  of  the  facts.  In  all  these  cases, 
however,  the  party  demurring  may,  by  applying  at  a  proper  time,  obtain 
leave  to  withdraw  his  demurrer  and  take  issue  on  the  facts,  as  has  been  al- 
ready observed. 

These  principles  were  so  strictly  adhered  to  at  common  law,  that  a  par- 
ty was  never  permitted  to  plead  and  demur  at  the  same  time,  since  that  was 
considered  as  inconsistent  and  contradictory.  By  our  statute,  however,  and 
by  the  construction  given  to  it,  the  defendant  may  now  both  plead  and  de- 
mur to  the  same  declaration,  or  to  the  same  count  in  the  declaration. 
The  plea  and  demurrer  are  still  considered  as  separate  and  distinct  branch- 
es of  the  pleadings,  entirely  independent  of  each  other;  and  in  deciding 
on  them  thus  distinctly,  the  common  law  rule  yet  prevails,  "  that  by  taking 
issue  upon  the  fact,  the  validity  of  the  declaration  in  law  is  admitted  ;"  and 
e  contra,  that  by  demurring,  the  truth  of  the  facts  is  conceded.  But  it  must 
not  be  forgotten,  that  although  a  demurrer  admits  all  facts  that  are  suffi- 
ciently pleaded,  it  is  not  regarded  as  admitting  those  facts  which  are  not 
sufficiently  pleaded.     Bac.  Pleas,  N.  3. 

Moreover,  although  taking  issue  in  fact  is  considered  so  far  as  an  admis- 
sion of  the  sufficiency  in  point  of  law  of  the  opposite  pleading,  that  upon 
the  trial  of  the  issue  no  objection  can  be  taken  to  its  sufficiency,  (except 
under  that  section  of  our  law  which  authorises  the  court  to  direct  the  jury 
to  disregard  a  faulty  count,)  yet  after  the  trial  is  passed,  the  court  in  giving 
judgment  may  look  into  the  whole  record,  and  if  there  is  any  substantial 
defect  in  the  pleading  of  the  successful  party,  advantage  may  be  taken  of 
it  by  motion  in  arrest  of  judgment,  or  by  motion  for  judgment  nan  obstante 
veredicto,  [notwithstanding  the  verdict,]  or  by  writ  of  error  according  to  the 
circumstancea.     This  subject,  and  that  of  (he  effect  of  pleading  over  in 


270  OF  PLEADING.  [  book  3. 

curintT  defects  of  adversary  pleading,  will  be  more  properly  considered  else- 
where. 

"  It  will  now  be  useful  to  examine  the  considerations,  by  which  in  a  view 
V        to  the  state  of  the  law  as  above  explained,  the  pleader  ought  to  be  governed 
in  making  his  election  to  demur  or  plead." 

"He  is  first  to  consider,  whether  the  declaration  or  other  pleading  op- 
posed to  him,  is  siifiicient  in  substance  and  form  to  put  him  to  his  answer. 
If  sufficient  in  both,  he  has  no  course  but  to  plead.  On  the  other  hand,  if 
insufficient  in  either,  he  has  ground  for  demurrer ;  but  whether  he  should 
demur  or  not  is  a  question  of  expediency,  to  be  determined  upon  the  fol- 
lowing views  :  If  the  pleading  be  insufficient  m  form,  he  is  to  consider 
whether  it  is  worth  while  to  take  the  objection,  recollecting  the  indulgence 
which  the  law  allows  in  the  way  of  amendment ;  but  also  bearing  in  mind, 
that  the  objection,  if  not  taken,  may  be  aided  by  pleading  over,  or  (after 
pleading  over)  by  the  verdict  and  statute  of  Jeofails.  If  he  chooses  to  de- 
mur, he  must  in  such  case  demur  specially,  lest  upon  general  demurrer  he 
should  be  excluded  from  the  objection.  On  the  other  hand,  if  there  be  in- 
sufficiency of  substance,  he  is  to  consider,  whether  that  insufficiency  be  in 
the  case  itself,  or  in  the  manner  of  its  statement ;  for,  on  the  latter  suppo- 
sition, it  might  be  removed  by  amendment,  and  it  may  not,  therefore,  be 
worth  while  to  demur.  And,  whether  it  be  such  as  an  amendment  would 
remove  or  not,  a  farther  question  will  arise,  whether  it  be  not  expedient  to 
pass  by  the  objection  for  the  present  and  plead  over.  For  a  party  by  this 
means  often  obtains  the  advantage  of  contesting  with  his  adversary  by  an 
issue  in  fact  in  the  first  instance,  and  of  afterwards  urging  the  objection 
in  law,  by  motion  in  arrest  of  judgment  or  writ  of  error.  This  double  aim, 
however,  is  not  always  advisable,  for  though  none  but  formal  objections  are 
cured  by  the  statutes  of  Jeofail,  some  defects  of  substance,  as  well  as  form, 
are  aided,  by  pleading  over,  or  by  a  verdict ;  and  therefore,  unless  the  fault 
be  clearly  of  a  kind  not  to  be  so  aided,  a  demurrer  is  the  only  mode  of  ob- 
jection to  be  relied  on.  The  additional  delay  and  expense  of  a  trial,  is 
also  sometimes  a  material  reason  for  proceeding  by  demurrer,  and  not  wait- 
ing to  move  in  arrest  of  judgment,  or  to  bring  a  writ  of  error ;  and  a  con- 
current motive  for  adopting  that  course  [in  England]  is,  that  costs  are  not 
allowed  when  the  judgment  is  arrested,  nor  where  it  is  reversed  upon  writ 
of  error  ;  (each  party  in  these  cases  paying  his  own  ;)  but  on  demurrer  the 
party  succeeding  obtains  his  costs."  These  judicious  observations  of  Mr. 
Stephen  must  however,  with  us,  be  qualified  by  the  remark,  that  the  party 
prevailing  at  law  in  Virginia  recovers  costs,  (1  R.  C.  ch.  h28,  §  23,)  and 
that  as  the  defendant  may  both  plead  and  demur  to  the  declaration  under 
our  law,  it  seems  most  advisable  for  him  to  do  so  where  the  declaration  is 
supposed  to  be  liable  to  objection. 

Having  thus  disposed  of  the  subjects  of  pleading  and  demurring,  it  will 
be  proper  to  observe,  that  "during  the  whole  of  these  proceedings,  from 
the  time  of  the  defendant's  appearance  in  obedience  to  the  writ,  it  is  ne- 
cessary that  both  the  parties  be  kept  or  continued  in  court  from  day  to  day, 
till  the  final  determination  of  the  suit.  For  the  court  can  determine 
nothing,  unless  in  the  presence  of  both  the  parties,  in  person  or  by  their 
attorneys,  or  upon  default  of  one  of  them,  after  his  original  appearance  and 
a  time  prefixed  for  his  appearance  in  court  again.  Therefore,  in  the  course 
of  pleading,  if  either  party  neglects  to  put  in  his  declaration,  plea,  replica- 
tion, rejoinder,  and  the  like,  within  the  times  allotted  by  the  standing  rules 
of  the  court,  the  plaintifl',  il"  the  omission  be  his,  is  said  to  be  nonsuit,  or 
not  to  follow  and  pursue  his  complaint,  and  shall  lose  the  benefit  of  his 
writ :  or,  if  the  negligence  be  on  the  side  of  the  defendant,  judgment  may 
be  had  against  him,  for  such  his  default.  And,  after  issue  or  demurrer 
joined,  as  well  as  in  some  of  the  previous  stages  of  proceeding,  a  day  is 


CHAP. 


15.]  OF  PLEADING.  271 


continual!)'  given  and  entered  upon  the  record,  for  the  parties  to  appear  on 
from  time  to  time,  as  the  exigence  of  the  case  may  require.  The  giving  of 
this  day  is  called  the  continuance,  because  thereby  the  proceedings  are  con- 
tinued without  interruption  from  one  adjournn)ent  to  another.  If  these 
continuances  are  omitted,  the  cause  is  thereby  discontinued,  and  the  de- 
fendant is  discharged  sine  die,  without  a  day,  for  this  turn  ;  for  by  his  ap- 
pearance in  court  he  has  obeyed  the  command  of  the  king's  writ;  and, 
unless  he  be  adjourned  over  to  a  certain  day,  he  is  no  longer  bound  to  at- 
tend upon  that  summons  ;  but  he  must  be  warned  afresh,  and  the  whole 
must  begin  de  novo. 

"Now,  it  may  sometimes  happen,  that  after  the  defendant  has  pleaded, 
nay,  even  after  issue  or  demurrer  joined,  there  may  have  arisen  some  new 
matter,  which  it  is  proper  for  the  defendant  to  plead  ;  as  that  the  plaintiff, 
being  a  feme-sole,  is  since  married,  or  that  she  has  given  the  defendant  a 
release,  and  the  like  :  here,  if  the  defendant  takes  advantage  of  this  new 
matter,  as  early  as  he  possibly  can,  viz.,  at  the  day  given  for  his  next  ap- 
pearance, he  is  permitted  to  plead  it  in  what  is  called  a  plea  c^ puis  dar- 
rein continuance,  or  since  the  last  adjournment.  For  it  would  be  unjust  to 
exclude  him  from  the  benefit  of  this  new  defence,  which  it  was  not  in  his 
power  to  make  when  he  pleaded  the  former.  But  it  is  dangerous  to  rely 
on  such  a  plea  without  due  consideration  ;  for  it  confesses  the  matter  which 
was  before  in  dispute  between  the  parties.  And  it  is  not  allowed  to  be  put 
in,  if  any  continuance  has  intervened  between  the  arising  of  this  fresh 
matter  and  the  pleading  of  it ;  for  then  the  defendant  is  guilty  of  neglect, 
or  laches,  and  is  supposed  to  rely  on  the  m.erits  of  his  former  plea.  Also, 
it  is  not  allowed  after  a  demurrer  is  determined,  or  verdict  given  ;  because 
then  relief  may  be  had  in  another  way,  namely,  by  writ  of  audita  querela, 
of  which  hereafter.  And  these  pleas,  puis  darrein  continuance, when  brought 
to  a  demurrer  in  law  or  issue  of  fact,  shall  be  determined  in  like  manner 
as  other  pleas. 

"  We  have  said,  that  demurrers,  or  questions  concerning  the  sufficiency  o( 
the  matters  alleged  in  the  pleadings,  are  to  be  determined  by  the  judges  of 
the  court,  upon  solemn  argument  by  counsel  on  both  sides,  and  to  that  end 
a  demurrer-book  is  made  up,  containing  all  the  proceedings  at  length, 
which  are  afterwards  entered  on  record  ;  and  copies  thereof  are  delivered 
to  the  judges  to  peruse.  The  record  is  a  history  of  the  most  material  pro- 
ceedings in  the  cause,  entered  on  a  parchment  roll,  [or  record  book  with 
us,]  and  continued  down  to  the  present  time ;  in  which  must  be  stated  the 
original  writ  and  summons,  all  the  pleadings,  the  declaration,  view  or  oyer 
prayed,  the  imparlances,  plea,  replication,  rejoinder,  continuances,  and 
whatever  further  proceedings  have  been  had  ;  all  which  are  entered  verba- 
tiin  on  the  roll,  [or  complete  record  book  with  us,]  and  also  the  issue  or  de- 
murrer or  joinder  therein."  In  Virginia,  however,  at  present,  complete 
records  are  only  made  up  in  certain  specified  cases.  See  1  R.  C.  ch.  128, 
§  99,  amended  by  Sess.  Acts,  1820,  ch.  31. 

When  the  pleadings  are  made  \\\),  if  they  terminate  in  a  demurrer,  the 
papers  are  handed  to  the  judges,  and  "the  matter  of  law  upon  which  the 
demurrer  is  grounded  is  upon  solemn  argument  determined  by  the  court, 
and  not  by  any  trial  by  jury  ;  and  judgment  is  thereupon  accordingly  given. 
As,  in  an  action  of  trespass,  if  the  defendant  in  his  plea  confesses  the  fact, 
but  justifies  it  causa  venationis  for  that  he  was  hunting ;  and  to  this  the 
plaintiff  demurs,  that  is,  he  admits  the  truth  of  the  plea,  but  denies  the  jus- 
tification to  be  legal:  now,  on  arguing  this  demurrer,  if  the  court  be  of 
opinion  that  a  man  may  not  justify  trespass  in  hunting,  they  will  give  judg- 
ment for  the  plaintiff:  if  they  think  that  he  may,  then  judgment  is  given 
for  the  defendant.     Thus  is  an  issue  in  law,  or  demurrer,  disposed  of. 


272  OP  PLEADING.  [  BOOK  S. 

"  An  issue  of  fact  takes  up  more  form  and  preparation  to  settle  it ;  for 
here  the  truth  of  the  matters  alleged  must  be  solemnly  examined  and  esta- 
blished by  proper  evidence  in  the  channel  prescribed  by  law.  To  which 
examination  of  facts,  the  name  of  trial  is  usually  confined  ;"  of  which  we 
shall  presently  proceed  to  treat  at  large. 

We  must  here  remember  that  an  "  issue  of  fact  is  where  the  fact  only, 
and  not  the  law,  is  disputed.  And  when  he  that  denies  or  traverses  the 
fact  pleaded  by  his  antagonist  has  tendered  the  issue,  thus:  'and  this  he 
prays  may  be  inquired  of  by  the  country  ;'  or,  '  and  of  this  he  puts  himself 
upon  the  country;'  it  may  immediately  be  subjoined  by  the  other  party, 
'  and  the  said  A  B  doth  the  like."  Which  done,  the  issue  is  said  to  be 
joined,  both  parties  having  agreed  to  rest  the  fate  of  the  cause  upon  the 
truth  of  the  fact  in  question.  And  this  issue  of  fact  must,  generally  speak- 
ing, be  determined,  not  by  the  judges  of  the  court,  but  by  some  other  me- 
thod;  the  principal  of  which  methods  is  that  by  the  country,  ^cr^ais,  (in 
Latin  per  palriam,)  that  is,  by  jury." 

Before  we  proceed  to  the  consideration  of  the  several  species  of  trial,  I 
will  take  leave  to  illustrate  the  course  of  proceeding  in  the  prosecution  of 
a  suit,  from  its  commencement  until  an  issue  is  made  up  for  trial,  by  some 
farther  remarks. 

The  young  practitioner  in  commencing  his  career  is  frequently  embar- 
rassed by  trifles,  however  well  stored  his  mind  may  be  with  legal  knowledge, 
unless  he  has  made  himself  acquainted  in  an  attorney's  office  with  the  usual 
forms  of  proceeding.  To  obviate  this  in  some  measure,  I  shall  here  offer 
to  the  student  a  short  abstract  of  the  steps  to  be  taken  in  the  commence- 
ment and  prosecution  and  defence  of  suits.  I  shall  take  the  case  of  an 
action  of  debt  on  bond,  noting  occasionally,  so  far  as  it  may  seem  neces- 
sary, any  material  diff"erence  between  the  course  of  proceeding  in  that  and 
in  other  actions. 

1.  The  proceedings  on  the  part  of  the  plaintiff". 

When  a  bond  is  presented  for  the  purpose  of  having  a  suit  instituted  on 
it,  the  practitioner  must  first  examine  whether  it  is  for  payment  of  money, 
or  with  collateral  condition.  If  the  former,  he  is  entitled  to  demand  bail : 
in  the  latter  case  he  cannot  without  the  special  order  of  a  justice.  Sup- 
pose, then,  it  be  a  bond  given  by  C  D  to  A  B,  in  the  penalty  of  $1000, 
with  condition  for  payment  of  $500.  The  suit  must  be  brought  for  the 
penalty,  and  the  attorney  must  file  his  memorandum  with  the  clerk,  accord- 
ing to  the  form  given  heretofore,  directing  such  damages  to  be  inserted  in 
the  writ  as  he  pleases.  The  amount  is  not  important  in  debt  on  bond 
for  payment  of  money,  (because  the  penalty  covers  the  interest,)  except 
where  the  bond  is  so  old  that  the  principal  and  interest  may  exceed  the 
penalty.  In  that  case,  as  the  plaintiff"  may  get  the  excess  in  the  shape  of 
damages,  and  as  he  can  never  get  judgment  for  more  damages  than  he  de- 
mands by  his  writ,  he  must  take  care  to  lay  damages  enough. 

Care  must  be  taken  to  name  the  parties  correctly  ;  and  the  safest  way  as 
to  the  name  of  the  defendant  is  to  be  governed  scrupulously  by  the  signa- 
ture of  the  bond;  vide  1  Chitty,  221,  citing  3  Taun.  504;  for  though  the 
name  be  not  accurately  spelt  in  the  signature,  the  defendant  cannot  deny 
it ;  or  if  he  does  by  pleading  in  abatement,  the  plaintiff"  may  reply  that  he 
sealed  the  bond  and  signed  it  by  the  name  thereto  affixed,  and  so  estop  hinl 
from  denying  it.  If,  indeed,  A  B  execute  a  bond,  and  sign  the  name  E  F, 
to  it,  or  any  other  name  totally  diff'erent  from  his  own,  he  may  be  sued  by 
his  right  name,  and  the  plaintiff  in  declaring  may  allege  that  "  he,  the  said. 
A  B,  by  the  name  of  E  F,  sealed  and  delivered  the  same.  See  2  B.  &  P. 
338.     Wats,  on  Part.  164,  [223.]     2  Salk.  462.     1  Lord  Ray.  335. 


CHAP.  15.]  OF  PLEADING.  273 

If  part  of  the  obligees  in  the  bond  be  dead,  tlie  suit  must  be  brought  in 
the  name  of  the  survivor  or  survivors,  and  the  writ  directed  to  be  issued  as 
follows :  "  A  B  and  C  D,  surviving  obligees  of  A  B,  C  D,  E  F,  and  G  H." 
If  all  be  dead,  the  suit  must  be  brought  in  the  name  of  the  executor  or  ad- 
ministrator of  that  obligee  who  survived  all  the  others. 

On  the  other  hand,  if  any  of  the  obligors  be  dead,  suit  may  be  brought 
either  against  the  survivor  or  survivors,  or  against  the  executor  or  adminis- 
trator of  any  of  those  who  are  dead.  1  R.  C.  ch.  98,  §  3.  This  was 
not  so  in  England.  3  Call,  268.  1  Mun.  181.  But  one  suit  cannot  be 
brought  against  the  surviving  obligor  or  obligors,  and  the  representatives  of 
the  deceased  obligors,  (3  Call,  521,)  as  the  judgment  against  them  respec- 
tively would  be  incongruous.  Where  suit  is  against  surviving  obligors,  the 
writ  should  be  directed  to  be  issued  "  vs.  A  B  and  C  D,  surviving  obligors 
of  A  B,  C  D,  and  E  F,'*  and  so  of  the  like :  and  where  the  bond  is  joint, 
it  is  essential  that  the  death  should  be  stated  in  the  declaration.  3  Mun.  187. 
If  there  be  sever sdjoiiit  obligors,  the  suit,  if  they  are  alive,  can  only  be 
brought  against  them  jointly;  but  if  the  bond  bind  the  obligors  jointly  and 
severally  to  pay  the  money,  they  may  be  sued  jointly  or  severally.  And 
the  rule  here  is,  that  you  may  sue  one  only,  but  if  you  sue  more  than  one 
(and  others  be  living)  you  must  sue  all,  for  the  bond  must  be  taken  as  alto- 
gether joint  or  altogether  several,  and  you  cannot  sue  any  intermediate 
number.  1  H.  &.  M.  61.  Hence  if  any  of  the  omitted  obligors  be  dead, 
that  must  be  made  to  appear  on  the  face  of  the  declaration,  as  we  have 
elsewhere  seen. 

The  writ  being  duly  issued,  it  becomes  the  duty  of  the  counsel  to  attend 
the  rules  at  the  return  day,  though  the  management  of  the  case  at  the  rules 
is  too  generally  left  to  the  clerk.  If  the  capiasbe  not  executed,  an  alias  is 
directed,  or  an  attachment  where  it  is  supposed  that  that  will  be  most  effec- 
tual. If  it  be  executed  and  no  bail  be  taken,  and  the  sheriff  returns,  "  com- 
mitted for  want  of  bail,"  and  the  defendant  is  still  in  custody,  the  plain- 
tiff files  his  declaration,  (of  which,  however,  when  the  defendant  is  in  ac- 
tual custody,  he  must  serve  him  with  a  copy  ;  Tidd's  practice  ;)  and  if  the 
defendant  enters  an  appearance,  the  plaintiff  gives  him  at  once  a  rule  to 
plead.  And  so  if  the  writ  be  executed  and  the  defendant  be  out  on  bail, 
if  he  enters  an  appearance,  the  plaintiff  immediately  gives  him  a  rule  to 
plead  at  the  following  rules.  But  if  the  sheriff  returns  the  writ  executed, 
and  the  defendant,  whether  in  custody  or  not,  fails  to  appear,  the  plaintiff 
files  his  declaration,  and  takes  what  is  called  a  common  order  against  him. 
The  substance  of  this  order  is,  that  unless  the  defendant  enters  an  appear- 
.  ance  at  the  next  rules,  and  pleads  to  issue,  judgment  will  be  entered  up 
against  him  for  the  plaintifTs  demand. 

2.  Let  us  now  consider  what  is  to  be  done  at  these  rules  by  the  counsel 
of  the  defendant. 

If  the  defendant  is  in  custody  and  desires  to  be  set  at  large,  he  must  give 
special  bail,  to  which  end  his  bail  must  enter  into  a  recognizance,  of  which 
the  form  is" given  in  1  R.  C.  ch.  128,  §  51.     Great  care  must  be  taken  to 
commit  no  error  in  stating  the  names  of  the  parties,  or  the  court  where  the 
suit  is  pending,  or  the  nature  of  the  action;  for  if  the  action  be  falsely  de- 
scribed, the  bail,  when  sued,  may  plead  to  the  scire  facias  that  there  is  no 
such  record  as  that  recited  in  the  recognizance.     Upon  the  recognizance 
being  entered  into,  it  must  be  filed,  and  the  defendant  is  thereupon  dis- 
charged from  custody.     He  may  then  have  an  appearance  entered  for  him 
'lat  the  rules  by  his  attorney. 
^      If  the  defendant  is  in  custody  and  unable  to  give  special  bail,  he  may 
1^  proceed  to  defend  himself  as  if  he  had  given  bail,  for  the  custody  of  his 
bo'dy  is  equivalent. 

VOL.  2—35 


274  OF  PLEADING.  ^  BO  OK  3. 

If  the  defendant,  being  in  custody  and  unable  to  give  bail,  is  conscious 
of  the  justice  of  the  debt,  and  wishes  to  take  the  insolvent  debtor's  oath, 
he  cannot  until  there  is  a  judgment.  Until  the  act  of  February,  1819;  he 
was  therefore  compelled  to  lie  in  jail  until  the  next  term,  but  that  act  now 
provides  that  he  may  confess  the  judgment  in  the  office,  and  then  proceed 
to  take  the  oath  in  order  to  his  discharge.     See  this  act,  2  R.  C.  pa.  585. 

If  the  defendant  gave  bail  when  the  writ  was  executed,  or  entered  after- 
wards into  a  recognizance  of  special  bail  before  a  magistrate,  he  is  then 
entitled  to  appear  and  plead. 

3.  We  return  again  to  the  plaintiff.  Upon  the  appearance  of  the  defen- 
dant at  the  return  day,  the  plaintiff  may  file  his  declaration  if  he  pleases, 
though  he  is  not  bound  to  do  so  until  the  next  rules.  If  he  wishes  to  ex- 
pedite his  cause,  he  will  file  his  declaration  immediately,  and  take  a  com- 
mon order  against  the  defendant  if  he  does  not  appear,  or  give  him  a  rule 
to  plead  if  he  does.  Until  he  files  his  declaration  he  can  do  neither.  See 
2  Mun.  333.  4  Mun.  483.  The  entry  on  the  rule  book  in  the  first  case 
is,  "  declaration  filed  and  common  order  against  defendant."  In  the  se- 
cond case  it  is  thus,   "declaration  filed  and  rule  to  plead." 

4.  At  the  following  rules  the  first  step  is  to  be  taken  by  the  defendant, 
unless  the  plaintiff  omitted  to  file  his  declaration,  in  which  case  he  should 
now  do  it.  If  the  declaration  was  filed  at  the  appearance  day,  and  there 
was  a  common  order,  or,  a  rule  to  plead,  the  defendant,  if  he  does  not  wish 
an  office  judgment  entered  up  against  him,  must  now  take  some  step.  If 
there  was  a  common  order,  he  must  now  appear,  which  he  may  do  by  at- 
torney, but  he  must  also  plead  to  issue  immediately.  If  he  does  not,  the 
common  order  will  be  confirmed  against  him,  or,  in  other  words,  there  will 
be  an  office  judgment  entered  up  against  him. 

If  at  the  first  rules  he  appeared,  and  the  plaintiff  filed  his  declaration  and 
gave  a  rule  to  plead,  the  defendant  must  now  plead,  or  judgment  will  be 
entered  against  him  for  want  of  a  plea.  If  he  wishes  delay  he  should 
plead,  and  where  any  defence  is  intended,  it  is  now  safest  to  demur  also  ; 
for  it  is  adjudged  that  a  parly  may,  under  the  act  1  R.  C.  ch.  128,  §  68,  both 
plead  and  demur  to  the  same  declaration.  4  Mun.  466.  And  as  the  late 
statute  of  Jeofails  cures  all  errors  of  substance  as  well  as  form  in  a  decla- 
ration which  is  not  demurred  to,  (1  R.  C.  ch.  128,  §  103,)  the  best  course 
is  always  to  demur  as  well  as  plead  where  a  defence  is  intended. 

The  defendant  having  pleaded,  gives  the  plaintiff  a  "rule  to  reply,"  by 
entering  those  words  in  the  rule  book.  The  plaintiff  may,  however,  reply 
immediately  ;  and  where  he  is  desirous  of  expediting  the  proceeding,  he 
should  do  so,  and  give  the  defendant  a  rule  to  rejoin.  Formerly  it  was  the 
practice,  when  the  plainlitT  replied  any  matter  which  he  supposed  brought 
the  pleadings  to  an  i^sue  between  himself  and  the  defendant,  for  him  or  the 
clerk  to  enter  what  is  called  the  similiter,  or  in  other  words  to  make  up  the 
issue.  But  this  seems  now  irregular.  The  clerk  cannot  put  in  the  simili- 
ter without  the  authority  and  against  the  consent  of  the  party,  but  he  must 
give  a  rule  to  rejoin.     Gil.  228.     Sed  vide  Steph.  254. 

In  ordinary  cases,  however,  of  actions  of  debt,  the  parties  are  brought  to 
an  issue  at  an  early  stage.  The  pleadings  in  disputed  cases  sometimes  run 
out  into  rejoinders,  sur-rejoinders,  rebutters,  and  sur-rebutters,  all  which  are 
to  be  entered  at  rules  in  the  same  manner  as  pleas  and  replications. 

If  the  process  has  issued  against  several  defendants,  and  it  is  returned 
executed  on  some  and  not  executed  on  others,  the  plaintifl"  may  abandon 
liis  suit  as  to  them,  or  file  his  declaration  and  proceed  against  those  who 
have  been  taken  in  the  manner  above  detailed,  and  take  an  alias,  or  pluries, 
or  an  attachment,  if  he  prefers  it,  against  the  others,  and  proceed  against 
them  as  thry  are  frotn  time  to  time  arrested.     Such  at  least  seems  fairly  to- 


CHAP.  15.]  OP  PLEADING.  1275 

be  inferred  from  the  case  of  Moss  rs.  Moss's  administrators,  (4  H.  &  M. 
293,)  which  was  a  suit  on  a  joint  and  several  bond  against  six  obligors ; 
the  capias  was  only  executed  on  two  :  it  was  held  that  the  plaintiff  was  not 
bound  to  sue  out  farther  process  against  the  rest,  but  might  take  judgment 
against  those  two.*  And  this  was  decided  upon  the  uniform  practice  of  the 
old  general  court,  where  there  were  several  defendants,  and  only  part  ar- 
rested, to  proceed  to  judgment  as  to  these,  and  discontinue  as  to  the  others; 
or  to  go  on  to  get  judgments  against  them  as  they  are  from  time  to  time 
arrested,  until  satisfaction  has  been  received.  Ibid.  This  practice  is  en-< 
tirely  at  variance  with  the  English  rule,  (see  Strange,  473,)  and  was  deci- 
ded to  be  incorrect  by  the  federal  court,  (7  Cranch,  201,)  before  they  were 
informed  of  the  above  decision  of  Moss  vs.  Moss's  administrators.  This 
last  case  now  gives  the  law  of  the  subject,  though  I  incline  to  think  the 
opinion  is  much  questioned  by  some  of  the  judges  of  the  present  court  of 
appeals.  As  to  the  necessity  of  a  joint  judgment,  where  the  action  is  up- 
on a  joint  contract,  see  2  Ran.  174,  313,  44G,  481.  3  Ran.  Taylor  rs. 
Beck. 

The  cause  being  now  at  issue,  is  put  upon  the  court  docket  for  trial :  or 
if  the  defendant  has,  by  failing  to  appear  or  plead,  permitted  a  judgment 
to  be  entered  in  the  office  against  him,  the  office  judgment  is  entered  upon 
the  docket,  and  is  called  at  the  next  term,  when  it  must  be  set  aside  ;  for  if  not 
set  aside  during  the  term,  it  is,  as  we  have  seen,  confirmed  and  made  final ; 
and  this  without  any  act  of  the  court,  since  the  confirmation  or  final  judg- 
ment is  not  entered  on  the  record.  For  it  is  provided  1  R.  C.  ch.  128,  § 
79,  that  "  all  judgments,  by  default,  obtained  in  the  office,  for  want  of  ap- 
pearance, or  bail  or  plea,  in  which  no  writ  of  inquiry  shall  be  awarded,  and 
which  shall  not  be  set  aside  on  some  day  of  the  next  succeeding  term,  as 
aforesaid  ;  and  all  non-suits  and  dismissions,  obtained  in  the  office,  and  not 
so  set  aside,  shall  be  considered  as  final  judgments  of  the  last  day  of  the 
term,  and  executions  may  issue  thereupon  accordingly.  Every  such  exe- 
cution in  favor  of  the  plaintiff,  in  any  action  of  debt,  founded  upon  any 
bond,  bill,  promissory  note,  or  other  writings,  for  the  payment  ot  money 
or  tobacco,  shall  be  issued,  as  well  for  interest  until  paid,  upon  the  princi- 
pal sum  due,  from  the  time  when  such  bond,  bill,  promissory  note,  or  other 
writing  was  payable  as  for  such  principal  sum  and  costs."  See  Post.  316, 
317. 

It  remains  to  say  a  few  things  on  Uie  subject  of  the  rules  to  which  such 
frequent  allusion  has  been  made. 

It  must  be  obvious  to  the  student,  that  as  the  intervals  between  the  terms 
of  our  superior  courts  is  considerable,  and  as  the  steps  preparatory  to  the 
trial  of  the  cause  are  numerous,  the  most  vexatious  delays  would  arise  if 
these  steps  could  only  be  taken  in  court.  Perhaps,  too,  the  legislature 
have  supposed  that  the  attention  to  this  mechanical  part  of  the  business 
would  absorb  too  much  of  the  time  of  the  court,  if  it  was  to  be  done  in 
term  time.  Hence  the  law  has  provided  that  it  may  be  conducted  by  the 
clerk  and  the  parties  in  the  clerk's  office,  at  certain  specified  days,  which 

*  There  can  be  little  doubt  that  the  law  as  laid  down  in  Mos=  vs.  Moss's  administrators  is  in  con- 
flict with  general  principles,  and  with  the  rules  of  (he  courts  of  Great  Britain.  Parties  who  are  sued 
upon  a  joint  contract  have  a  right  to  expect  that  all  the  joint  oblitjors  should  be  brought  before  the 
court  if  practicable,  that  each  niav  have  the  aid  of  his  i'ellows,  both  in  the  defence  of  the  action 
and  in  ihe  responsibility  for  the  demand.  But  where  the  whole  line  of  process  against  a  party  ruD9 
out  without  forcing  an  appearance,  as  in  case  of  outlawry,  or  where  he  is  out  of  the  country,  and  so 
aor  amenable  to  process,  (I  Wils.  78.  1  Wash.  9,)  or  where  he  has  been  proceeded  against  in  equity 
to  the  utmost  extent  of  its  process,  these  proceedings  may  go  on  against  the  other  defendant  without 
liiuo.  1  Vez.  195.  2  Mad.  1G7.  So  too  1  conceive  with  us,  when  there  is  a  return  of  no  inhabitant 
as  to  one,  for  upon  that  return  no  further  process  can  issue  against  the  defendant  so  returned.  But 
where  the  process  is  returned  sot  executed  merely,  I  should  deem  it  essential  upon  principle  that  the 
plaintiff  should  sue  out  new  process  according  to  law  to  enforce  an  appearance  ;  and  until  the  line 
of  process  iias  exhausted  no  judgment  against  the  other  defendant  woulu  be  deemed  rej^ular. 


276  OF  PLEADING.  [  BOOK  3. 

are  called  the  rule  days,  because  on  those  days  the  parties  alternately  pro- 
cure the  entry  by  the  clerk  of  certain  orders,  which  are  commonly  called 
rules,  upon  the  rule  book.  By  these  rules  each  party  alternately  calls  upon 
his  adversary  to  take  the  necessary  steps  in  his  cause  under  pain  of  its  be- 
ing dismissed  for  want  of  prosecution  in  the  case  of  the  plaintiff,  or  of  a 
judgment  being  rendered  for  the  demand  in  case  of  the  defendant.  All 
rules  to  declare,  plead,  reply,  rejoin,  or  for  other  proceedings,  must,  by  law, 
be  given  regularly  from  month  to  month,  and  entered  in  the  rule  book,  and 
each  rule  expires  on  the  succeeding  rule  day.  1  R.  C.  ch.  128,  §  74.  In 
the  county  and  corporation  courts,  and  also  in  the  superior  courts  and  the 
general  court,  the  rule  days  are  holden  on  the  first  Monday  in  every  month, 
and  are  continued  from  day  to  day  not  exceeding  six  days  ;  Id.  §  69 ;  which 
six  days,  like  the  days  of  a  term  of  the  court  itself,  make  in  the  legal  fiction 
but  one  day.  The  rules  taken  in  the  office  are  always  under  the  control 
of  the  court,  who  are  empowered  to  correct  them,  or  to  set  them  aside,  as 
may  seem  right,  and  also  to  reinstate  any  cause  discontinued  during  the 
preceding  vacation.     Id.  §  77. 

I  shall  here  subjoin  a  short  abstract  of  a  rule  book,  with  a  view  of  ex- 
plaining more  distinctly  the  mode  of  taking  the  rules.  In  the  Lawyer's 
Guide,  pa.  7,  the  student  will  find  the  form  of  a  rule  book,  and  the  manner 
of  taking  the  rules  by  Mr.  Hening.  The  abolition  of  appearance  bail  has 
however  introduced  great  alterations,  besides  which,  there  are  some  things 
in  his  mode  of  taking  the  rules  (such  as  the  imparlances)  which  I  do  not 
think  justified  by  the  law.  I  am  aware  that  there  are  many  differences  in 
this  matter  between  the  clerks  of  our  courts.  The  sketch  which  is  here 
presented  I  have  endeavored  to  conform  to  the  law  and  to  the  practice  es- 
tablished in  the  superior  courts  in  which  I  have  practiced  as  counsel. 

Form  of  a  rule  book,  exhibiting  the  manner  of  entering  rules  by  the  par^ 
ties  in  a  cause  :  — 


CHAP.  15.] 


OP  PLEADING. 


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278  t)F  TRIAL.  t  BOOK  3. 

CHAPTER  XVI. 

OF  THE  SEVERAL  SPECIES  OF  TRIAL. 

"  Trial  is  the  examination  of  the  matter  of  fact  in  issue  :  of  which  there 
are  many  diflierent  species,  according  to  the  difference  of  the  subject,  or 
thing  to  be  tried  :  of  all  which  we  will  take  a  cursory  view  in  this  and  the 
subsequent  chapter.  For  the  law  of  England  so  industriously  endeavors 
to  investigate  truth  at  any  rate,  that  it  will  not  confine  itself  to  one  or  to  a 
few  manners  of  trial  ;  but  varies  its  examination  of  facts  according  to  the 
nature  of  the  facts  themselves  :  this  being  the  one  invariable  principle  pur- 
sued, that  as  well  the  best  method  of  trial,  as  the  best  evidence  upon  that 
trial  which  the  nature  of  the  case  affords,  and  no  other,  shall  be  admitted 
in  the  English  courts  of  justice. 

"The  species  of  trials  in  civil  cases  are  seven.  By  record;  by  inspec' 
tion,  or  examination;  by  certificate ;  by  icitnesses ;  by  icagcr  of  battel ;  by 
wager  of  law  ;  and  by  jury. 

I.  "  First,  then,  of  the  trial  by  record.  This  is  only  used  in  one  particu- 
lar instance  :  and  that  is  where  a  matter  of  record  is  pleaded  in  any  action, 
as  a  fine,  a  judgment,  or  the  like  ;  and  the  opposite  party  pleads,  '  nul  tiel 
record,'  that  there  is  no  such  matter  of  record  existing  :  upon  this,  issue  is 
tendered  awd  joined  in  the  following  form,  '  and  this  he  prays  may  be  in- 
quired of  by  the  record,  and  the  other  doth  the  like  ;'  and  hereupon,  the 
party  pleading  the  record  has  a  day  given  him  to  bring  it  in,  and  proclama- 
tion is  made  in  court  for  him  to  '  bring  forth  the  record  by  him  in  pleading 
alleged,  or  else  he  shall  be  condemned  ;'  and,  on  his  failure,  his  antagonist 
shall  have  judgment  to  recover.  The  trial  therefore  of  this  issue  is  merely 
by  the  record;  for,  as  Sir  Edward  Coke  observes,  a  record  or  enrolment  is 
a  monument  of  so  high  a  nature,  and  importeth  in  itself  such  absolute  ve- 
rity, that  if  it  be  pleaded  that  there  is  no  such  record,  it  shall  not  receive 
any  trial  by  witness,  jury,  or  otherwise,  but  only  by  itself."  Thus  where 
an  action  of  debt  or  scire  facias  is  brought  upon  a  judgment,  if  the  defen- 
dant denies  its  existence  or  perceives  that  it  has  been  misrecited  in  the  de- 
claration or  scire  facias,  he  pleads  nul  tiel  record;  which  plea  being  joined 
and  the  record  produced,  it  is  examined  by  the  court  and  compared  with 
the  recital,  and  if  there  be  a  material  variance,  the  judgment  is,  "  that  there 
is  no  such  record."  A  like  course  is  pursued  where  the  defendant  relies 
upon  a  record,  the  existence  of  which  the  plaintiff'  denies. 

The  principle  on  which  the  law  considers  a  record  of  such  absolute  ve- 
rity that  it  cannot  be  contradicted,  is  obvious.  If  it  were  otherwise,  it  would 
be  difficult  to  see  where  a  litigation  would  end  ;  and  as  the  administration 
of  justice  is  entrusted  by  the  organization  of  government  to  the  courts,  it 
must  be  taken  for  granted  that  what  they  have  done  in  a  matter  submitted 
to  their  jurisdiction,  and  which  they  have  committed  to  record,  must  be 
right,  unless  it  has  been  reversed  in  the  manner  prescribed  by  the  laws. 
Were  it  otherwise  confusion  would  ensue,  and  conflicting  decisions  of  dif- 
ferent courts  of  the  same  country  would  be  the  consequence.  Hence  the 
judgment  of  a  domestic  court  of  record  is  not  only  conclusive  of  the  right 
which  it  establishes,  but  of  ihc  facts  which  it  directly  decides.  4  Cranch, 
43fi. 

But  these  reasons  obviously  do  not  apply  to  the  judgments  or  decrees  of 
foreign  courts  ;  for  to  them  is  not  confided  by  our  laws  and  constitutions 
the  power  of  deciding  on  the  rights  and  property  of  our  people.  Their 
decisions  are  not  considered  as  entitled  to  the  respect  paid  to  our  own  ; 
and  accordingly  it  is  the  established  principle  that  a  foreign  judgment  is 
not  conclusive  upon  the  parties,  but  is  examinable  in  our  courts.  Hence 
the  plea  to  an  action  of  debt  on  a  foreign  judgment  is  nil  debet,  which  puts 


CHAP.  16.]  OF  TRIAL.  279^ 

in  issue  the  debt  itself;  instead  of  mil  tlel  record,  which  only  denies  the 
existence  of  the  judgment.  If,  indeed,  the  adjudications  of  foreign  courts 
were  conclusive,  the  principle  would  lead  to  very  serious  results.  It  would 
be  impossible  to  draw  a  line  of  distinction,  and  thus  the  judgments  of  Hayti 
and  Algiers,  though  rendered  upon  principles  arbitrary  and  despotic,  and 
in  irreconcileable  conflict  with  those  of  our  own  institutions,  would  become 
absolutely  binding. 

But,  though  the  adjudications  of  foreign  courts  are  not  conclusive,  the 
comity  of  our  law  attributes  to  them  a  certain  degree  of  weight,  provided 
they  do  not  appear  on  their  face  to  be  contrary  to  reason  and  justice ;  as 
where  they  are  rendered  against  a  party  who  had  no  notice  that  he  was 
sued.  1  Camp.  63.  9  East,  195.  1  Dall.  261.  8  John.  86.  And  while 
(he  law  permits  them  to  be  examined  into  and  contested,  it  considers  them 
as  prima  facie  evidence  until  they  are  contradicted.  Hence  we  find  the 
rule  laid  down  as  well  established,  that  a  judgment  in  a  foreign  court  is 
prima  facie  evidence  of  a  debt,  but  has  only  the  force  of  a  simple  contract 
between  the  parties.     Philips,  [272.]     Doug.  1. 

It  is  not  perhaps  easy  to  say  how  far  a  party  may  proceed  in  this  re-ex- 
amination of  the  ilecision  of  a  foreign  court.  Whether  he  shall  be  con- 
fined to  shewing  that  the  decision  is  arbitrary,  unjust  in  principle,  or  con- 
trary to  the  laws  of  nations,  or  may  be  permitted  to  go  into  a  re-examina- 
tion of  the  whole  case,  and  contest  the  facts  upon  which  it  is  founded  and 
the  conclusions  drawn  from  them,  does  not  appear  to  be  very  clearly  set- 
tled. I  incline,  however,  to  the  latter  opinion  ;  that  the  judgment  of  the 
foreign  court  has  but  the  force  of  a  simple  contract  between  the  parties; 
that  the  consideration  or  grounds  of  that  judgment  may  of  course  be  ex- 
amined into  ;  4  T.  R.  493  ;  that  as  the  party  voluntarily  submits  himself  to 
our  jurisdiction,  the  judgment  is  only  looked  upon  as  matter  in  pais,  as  a 
consideration  prima  facie  sufficient  to  raise  a  promise  ;  that  it  is  of  course 
to  be  examined,  as  all  other  considerations  of  promises  are  examinable,  and 
for  that  purpose  evidence  will  be  received  either  to  prove  that  the  founda- 
tion of  it  was  a  foreign  ordinance  manifestly  unjust  and  contrary  to  the 
laws  of  nations,  (Mayne  vs.  Walter,  cited  Gil.  24,)  or  that  it  was  contrary 
to  the  law  of  the  country  where  it  was  pronounced,  (2  H.  B.  410,)  or  that 
the  facts  upon  which  it  was  founded  were  not  sufficient  to  justify  the  adju- 
dication. See  Buller's  opinion,  cited  Philips,  [271,]  and  Judge  Parsons' 
opinion,  cited  272,  in  note.  He  seems  to  admit  in  broad  terms  that  the 
merits  of  the  foreign  judgment  may  be  inquired  into.  9  Mass.  Rep.  462„. 
A  ditferent  sentiment  is  said  to  have  prevailed,  however,  in  Lee  vs.  Hop- 
kins, Winchester  superior  court. 

But  although  a  foreign  judgment  is  only  prima  facie  evidence  of  a  debt 
for  which  the  suit  abroad  was  instituted,  or  of  the  facts  which  it  establishes 
when  they  come  collaterally  in  question,  (Gil.  16,)  yet  for  some  purposes  it 
is  conclusive.  As  where  it  is  in  rein;  in  other  words,  where  it  settles  and 
determines  the  right  of  property,  it  is  conclusive  and  absolute  as  to  that 
right.  4  Cranch,  436.  Gil.  22.  So,  too,  an  acquittal  of  a  crime  under  a 
criminal  prosecution,  or  a  discharge  from  a  demand  arising  in  the  foreign 
state,  or  a  decree  as  to  the  validity  of  a  marriage  contracted  there,  are  all 
conclusive  evidence  of  the  matters  so  established.  See  Norris's  Peake, 
101,  102. 

The  doctrine  of  the  finality  of  a  discharge  from  a  demand  which  has 
been  asserted  in  a  foreign  state,  where  the  defendant  has  had  a  judgment 
rendered  in  his  favour,  rests  upon  a  sufficiently  obvious  distinction  between 
the  situation  of  the  plaintiff  and  defendant  in  this  matter.  Where  a  plain- 
tiff seeks  in  our  courts  to  enforce  a  judgment  of  a  foreign  court  against  an 
individual  under  the  protection  of  our  laws,  we  are  at  liberty  in  our  courts- 


280  OF  TRIAL.  [  BOOK  3. 

of  justice  to  examine  into  the  merits  of  such  judgment ;  for  the  suit  of  the 
plaintiff  is  an  appeal  to  our  comity  only  as  a  nation,  since  there  is  no  obli- 
gation on  one  sovereign  to  execute  within  his  dominion  a  sentence  ren- 
dered out  of  it.  Hence,  in  such  cases,  the  sentence,  though  prima  facie 
evidence,  is  examinable,  and  the  defendant  may  impeach  the  justice  of  it, 
(2  Kent,  102,)  or  shew  that  it  was  irregularly  or  unduly  obtained.  But  when 
a  plaintiff  has  invoked  a  foreign  jurisdiction  which  has  pronounced  against 
his  demand,  the  pica  of  this  judgment  against  him  in  bar  of  an  action  for 
the  same  cause,  is  final  and  conclusive,  provided  the  subject,  the  parties 
and  grounds  of  the  judgment,  be  the  same.  It  becomes  by  such  judgment 
res  judicata,  and  the  exceptio  rei  judicata  is  an  absolute  bar.  This  is  said 
to  be  a  principle  of  general  jurisprudence,  founded  on  public  convenience, 
and  sanctioned  by  the  usages  and  courtesy  of  nations.     2  Kent,  102. 

We  must,  also,  in  cases  of  this  description,  advert  to  the  difference  be- 
tween those  in  which  the  fact,  or  the  right  established  by  the  foreign  judg- 
ment, is  the  matter  in  (piestion,  and  those  where  the  existence  of  such  a 
decision  is  alone  sufficient  to  charge  the  party.  Where  the  latter  is  the 
real  question  between  the  parties,  it  is  conclusive  :*  as  where  the  defendant 
agreed  to  indemnify  the  plaintiff  (who  had  been  his  partner  abroad)  against 
all  claims  against  the  partnership,  a  judgment  obtained  against  the  partner- 
ship in  the  foreign  court  was  conclusive,  it  appearing  that  the  defendant 
had  notice  of  it  and  was  a  party.  Philips,  [272.]  So  where  the  plaintiff 
sued  the  defendant  for  money  paid  by  the  plaintiff  as  a  security  under  a 
judgment  of  a  foreign  state,  that  judgment  was  considered  as  conclusive, 
unless  impeached  by  evidence  of  fraud  or  collusion  ;  4  Mun.  241  ;  for  in 
this  case,  whether  the  judgment  was  just  or  unjust  was  unimportant,  as  the 
defendant  was  bound  to  stand  in  his  security's  shoes,  and  relieve  him  from 
its  consequences.  Its  existence,  therefore,  alone  was  in  question  ;  its  va- 
lidity was  out  of  the  case,  unless  it  was  obtained  by  fraud. 

How  far  the  sentence  of  a  foreign  court  of  admiralty  is  evidence  in  our 
courts,  see  Gil.  IG.  4  Cranch,  185,  &c.  434.  4  Mun.  53.  Norris's  Peake, 
101,  &c.  and  the  cases  there  cited.  Certain  political  considerations  seem 
to  have  had  much  weight  on  the  minds  of  the  judges  in  deciding  the  case 
in  Gilmer's  Reports. 

It  remains  to  be  considered  in  what  light  are  the  several  states  of  this 
union  to  be  considered  in  relation  to  this  question.!  It  was  long  ago  de- 
cided that  the  several  states,  with  respect  to  their  municipal  laws,  are  to 
be  considered  as  foreign  to  each  other.  2  Wash.  282.  And  this  principle 
has  been  affirmed  by  Judge  Washington  in  reference  to  bills  of  exchange. 
Lonsdale  vs.  Brown,  Oct.  1821.  But  the  constitution  of  the  United  States 
(art.  4,  §  1,)  declares  that  "full  faith  and  credit  shall  be  given  in  each  state 
to  the  public  acts,  records,  nuA  judicial  inoceedings  of  every  other  state," 

*A  Bcciirity  who  pays  an  usurious  bond  in  invilum,  is  entitled  to  recover  frnm  tiieprincip;*!  on  mo- 
tion. 1  lMas!-a.  Rep.  l39.  Our  act  seems  to  consider  the  judjjnient  against  tiie  surety  as  conclusive 
unless  collusion  be  shewn.    )  RC.  ch.  116. 

t  Ireland  was  considered  as  no  part  of  "  the  realm  "  by  I,ord  Ilardivicke.  See  Otway  vs.  Ram- 
say, cited  in  note  to  4  15arn.  &  Cre3.411.  10  C.  I,.  II.  37;j.  And,  even  after  theuiiion,  it  was  decid- 
ed that  aa  Irish  Judgment  was  not  a  record  in  England,  and  that  assumpsit  would  lie  on  it.    Idem. 

If  judijtncHtB  of  our  sister  slates  have  the  force  of  judgtnents  here,  it  becomes  an  important  inquiry 
whether  they  are  of  superior  dignity  to  specialties  in  iheadminislraiinii  of  decedents'  estates.  Lord 
Ch.  J.  Abbot  seemed  to  think  another  consequence  miyht  be,  that  if  judgments  in  Ireland  were  ta 
be  treated  as  judgments  in  England  they  would  bind  lands  there.  'I'his,  1  think,  is  going  too  far, 
though  there  are  many  difficulties  growing  out  of  the  rule  which  makes  the  judgments  of  one  juris- 
diction conclusive  in  another.  Thus,  on  the  borders  of  this  state  and  the  stale  of  Oliio,  it  is  a  com- 
mon practice  for  th«  Virginia  debtor  to  give  with  his  bond  a  power  of  attorney  to  confess  judgment 
in  Ohio;  which  judgment,  when  confessed,  is  sued  upon  in  this  state  as  conclusive,  and  thus  our  law, 
as  to  such  powers,  is  evaded.  Again,  if  judgment  be  confessed  under  such  a  power  in  Ohio  lor  an 
usurious  debt,  and  an  notion  be  brought  upon  it  here,  it  may  not,  perhaps,  be  easy  to  point  out  the 
course  which  the  debtor  may  pursue  for  his  redntss,  particularly  since  the  recent  rigorous  adjudica- 
tions on  the  subject  of  injunctions,  in  the  cases  of  Thon>psuut?.s.  Woodi  &c.  at  Lewisburg,ana!!3i»ilh 
V3.  Weaver,  at  Kichmond,  Jnnuaiy,  liJ35. 


CHAP.  16.]  OF  TRIAL.  281 

and  that  congress  may  prescribe  the  manner  of  authentication  and  the  ef- 
fect thereof:  and  a  law  of  congress  lias  accordingly  declared  that  the  re- 
cords and  judicial  proceedings  of  every  state,  when  authenticated  accord- 
ing to  its  provisions,  shall  have  such  faith  and  credit  given  to  them  in  every 
court  within  the  United  States,  as  they  have  by  law  or  usage  in  the  courts 
of  the  state  from  whence  they  are  taken.  Notwithstanding  these  decla- 
rations, the  decisions  of  the  courts  of  the  different  states  are  very  conflict- 
ing on  this  subject.  In  New  York  it  has  been  determined  that  the  judg- 
ment of  another  state  is  a  simple  contract  debt,  and  that  assumpsit  will  lie 
on  it.  5  John.  132.  And,  it  has  been  held,  that  in  an  action  on  such  judg- 
ment, it  was  to  be  regarded  as  a  foreign  judgment,  the  constitution  and  all 
acts  of  congress  requiring  only  that  credit  should  be  given  to  the  contents 
of  the  record,  but  that  the  effect  or  operation  of  it  remained  as  at  common 
law.  1  Caines,  4G9.  8  John,  173.  These  opinions  are  supported  by  a 
case  in  Massachusetts,  (1  Mass.  Rep.  401,)  but  are,  however,  strongly  im- 
pugned by  other  decisions.  See  15  John.  Rep.  121.  9  Mass.  Rep.  462. 
2  Dall.  302.  1  Cranch,  285.  7  Cranch,  308,  481.  See,  also,  3  Wheat. 
234,  and  Kent's  Commentaries. 

Though  no  case  is  to  be  found  on  this  subject  in  our  Virginia  reporters, 
yet  the  opinion  has  been  expressed  by  one  of  our  superior  courts,  that  the 
judgment  of  another  state  has,  by  virtue  of  the  constitution  and  law  of  con- 
gress, the  same  conclusive  effect  as  a  judgment  of  our  state  courts.  Per 
White,  J.  at  Winchester.* 

It  has  been  also  decided  here  that  a  judgment  of  the  federal  circuit  court 
of  another  state,  is  conclusive  in  the  tribunals  of  this  state.  Bush  vs.  M'Al- 
ister,  Winchester  superior  court.  But  the  same  court  has  held  that  the 
judgment  of  the  courts  of  the  District  of  Columbia  are  to  be  considered  as 
foreign  judgments.  Lee  vs.  Hopkins.  For  that  district  is  not  a  state  with- 
in the  meaning  of  the  constitution.  2  Cranch,  445.  And  if  not,  it  is  fo- 
reign to  us  upon  the  principle  of  the  decision  in  2  Wash.  262,  and  the  other 
cases  above  cited. 

The  mode  of  authentication  of  records  is  prescribed  by  an  act  of  con- 
gress. 

As  the  plea  of  nul  tiel  record  is  to  be  tried  by  the  court  and  not  by  the 
jury,  it  ought  not  to  conclude  "  and  of  this  he  puts  himself  on  the  country," 
but  it  should  conclude  with  a  verification,  and  praying  judgment  whether 
the  plaintiff  should  maintain  his  action,  &c.     4  Mun.  466. 

A  special  provision  is  to  be  found  for  the  case  of  records  which  have  been 
injured  or  destroyed,  in  1  R.  C.  ch.  130. 

II.  "Trial  by  inspection  or  examination,  is  when,  for  the  greater  expedi- 
tion of  a  cause,  in  some  point  or  issue  being  either  the  principal  question  or 
arising  collaterally  out  of  it,  but  being  evidently  the  object  of  sense,  the 
judges  of  the  court,  upon  the  testimony  of  their  own  senses,  shall  decide 
the  point  in  dispute.  For,  where  the  affirmative  or  negative  of  a  question 
is  matter  of  such  obvious  determination,  it  is  not  thought  necessary  to  sum- 
mon a  jury  to  decide  it ;  who  are  properly  called  in  to  inform  the  conscience 
of  the  court  in  respect  of  dubious  facts :  and  therefore,  when  the  fact,  from 
its  nature,  must  be  evident  to  the  court  either  from  ocular  demonstration 
or  other  irrefragable  proof,  there  the  law  departs  from  its  usual  resort,  the 
verdict  of  twelve  men,  and  relies  on  the  judgment  of  the  court  alone.  As 
in  case  of  a  suit  to  reverse  a  fine  for  non-age  of  the  cognizor,  or  to  set 
aside  a  statute  or  recognizance  entered  into  by  an  infant ;  here,  and  in  other 
cases  of  the  like  sort,  a  writ  shall  issue  to  the  sheriff,  commanding  him 
that  he  constrain  the  said  party  to  appear,  that  it  may  be  ascertained  by  the 
view  of  his  body  by  the  king's  justices,  whether  he  be  of  full  age  or  not; 

* 2  Leigh,  172,  Accoidaut. 

TOL.  2 — 36 


282  OF  TRIAL.  ['book  3. 

'  lit  per  aspectum  corporis  sui  constare  poterit  jtisticiariis  noslris,  si  praedic- 
tus  A  sit  plcnae  aetatis  iiecne.'  If,  however,  the  court  has,  upon  inspection, 
any  doubt  of  the  age  of  the  party,  (as  may  frequently  be  the  case,)  it  may 
proceed  to  take  proofs  of  tlie  fact ;  and,  particularly,  may  examine  ihe  in- 
fant himself  upon  an  oath  of  voire  dire,  ventatem  dicere,  that  is,  to  make 
true  answer  to  such  questions  as  the  court  shall  demand  of  him  :  or  the 
court  may  examine  his  mother,  his  godfather,  or  the  like. 

"In  like  manner  if  a  defendant  pleads  in  abatement  of  the  suit  that  the 
plaintiff  is  dead,  and  one  appears  and  calls  himself  the  plaintiff,  which  the 
defendant  denies  :  in  this  case  the  judges  shall  determine  by  inspection  and 
examination,  whether  he  be  the  plaintiff  or  not.  Also,  if  a  man  be  found 
by  a  jury  an  idiot  analivitate,  he  may  come  in  person  into  the  chancery 
before  the  chancellor,  or  be  brought  there  by  his  friends,  to  be  inspected 
and  examined  whether  idiot  or  not :  and  if,  upon  such  view  and  inquiry,  it 
appears  he  is  not  so,  the  verdict  of  the  jury,  and  all  the  proceedings  there- 
on, are  utterly  void  and  instantly  of  no  efiect. 

"Another  instance  in  which  the  trial  by  inspection  may  be  used,  is  when 
upon  an  appeal  of  maihem,  the  issue  joined  is  whether  it  be  maihem  or  no 
maihem,  this  shall  be  decided  by  the  court  upon  inspection  ;  for  which  pur- 
pose they  may  call  in  the  assistance  of  surgeons.  And,  by  analogy  to  this 
in  an  action  of  trespass  for  maihem,  the  court  (upon  view  of  such  maihem 
as  the  plaintiff  has  laid  in  his  declaration,  or  which  is  certified  by  the  judges 
who  tried  the  cause  to  be  the  same  as  was  given  in  evidence  to  the  jury,) 
may  increase  the  damages  at  their  own  discretion  ;  as  may  also  be  the  case 
upon  view  of  an  atrocious  battery.*  But  then  the  battery  must  likewise  be 
alleged  so  certainly  in  the  declaration,  that  it  may  appear  to  be  the  same 
with  the  battery  inspected. 

"  Also,  to  ascertain  any  circumstances  relative  to  a  particular  day  past,  it 
hath  been  tried  by  an  inspection  of  the  almanac  by  the  court.  Thus,  upon 
a  writ  of  error  from  an  inferior  court,  that  of  Lynn,  the  error  assigned  was 
that  the  judgment  was  given  on  a  Sunday,  it  ai)pearing  to  be  on  26  Febru- 
ary, 26Eliz.  and  upon  inspection  of  the  almanacs  of  that  year,  it  was  found 
that  the  26  of  February  in  that  year  actually  fell  upon  a  Sunday  :  this  was 
held  to  be  a  sufficient  trial,  and  that  a  trial  by  a  jury  was  not  necessary,  al- 
though it  was  an  error  in  fact :  and  so  the  judgment  was  reversed.  But,  ia 
all  these  cases,  the  judges,  if  they  conceive  a  doubt,  may  ord^r  it  to  be  tried 
by  jury. 

III.  "  The  trial  by  certificate  is  allowed  in  such  cases  where  the  evidence 
of  the  person  certifying  is  the  only  proper  criterion  of  the  point  in  dispute. 
For,  when  the  fact  in  question  lies  out  of  the  cognizance  of  the  court,  the 
judges  must  rely  on  the  solemn  averment  or  information  of  persons  in  such 
a  station  as  affords  them  the  most  clear  and  complete  knowledge  of  the 
truth.  As,  therefore,  such  evidence  (if  given  to  a  jury)  must  have  been 
conclusive,  the  law,  to  save  trouble  and  circuity,  permits  the  fact  to  be  de- 
termined upon  such  certificate  merely.'"' 

In  illustration  of  this  mode  of  trial,  P.lr.  Blackstone  proceeds  to  enume- 
rate a  variety  of  cases  to  which  it  is  a]iplicab!e,  but  none  of  which  are 
known  to  our  law.  It  may  not  be  improper,  however,  to  observe,  that  though 
the  trial  by  certificate  is,  perhaps,  unknown  in  the  practice  of  our  courts, 
yet  are  there  many  instances  in  which  the  ordinary  modes  of  proof  by  the 
testimony  of  sworn  witnesses  may  be  substituted  or  supplied  by  the  certifi- 
cates of  the  accredited  officers  of  the  law.  Thus,  a  copy  of  the  record  of 
a  court  is  sufficiently  authenticated  by  the  certificate  of  the  clerk  that  it  is 
a  true  copy  from  the  records  in  his  office,  even  though  such  certificate  be 
unaccompanied  by  any  aflidavit.  Whereas,  if  from  any  cause  the  copy  of 
*Tliii>  pnner  i»  novsr  fxpriiicd  by  ihe  coui  is  in  \ir;;inia.  and  is  contiuiy  to  the  spirit  of  oiir  laws. 


CHAP.  16.]  OF  TRIAL.  283 

a  record  cannot  be  had  from  the  proper  officer,  no  copy  would  be  deemed 
a  true  copy,  unless  proved  by  deposition  to  have  been  copied  from  and  com- 
pared with  the  original  by  the  deponent. 

.  It  is  also  material  here  to  remark,  that  when  it  becomes  a  question  what 
the  law  of  a  foreign  state  is,  that  question  is  to  be  tried  by  the  jury  and  not 
by  the  court ;  and  the  party  who  pleads  it  should  therefore  conclude  to  the 
country,  and  not  to  the  court :  per  Buller,  Doug.  1  :  for  foreign  laws  are 
considered  as  fads,  which,  like  other  facts,  must  be  proved  to  exist  before 
they  can  be  received  in  a  court  of  justice  ;  2  Cranch,  236.  4  John  C.  C. 
520;  and  being  regarded  as  matters  of  fact,  they  must  be  tried  by  the  jury 
and  not  by  the  court.  The  courts  of  one  country  cannot  judicially  take  no- 
tice of  the  laws  of  another,  and  therefore  the  testimony  of  witnesses  of 
competent  skill  and  knowledge,  or  other  evidence,  must  be  produced  to 
prove  what  those  laws  are.  Norris's  Peake,  111,  &c.  14  Mass.  Rep.  455. 
1  P.  Wms.  431. 

It  becomes  then  important  to  know  what  kind  of  testimony  is  sufficient 
to  prove  what  the  law  of  a  foreign  country  is.  And  here  there  is  an  obvious 
distinction  between  the  written  and  unwritten  law  of  a  foreign  country. 
The  written  law  can  only  be  proved  by  a  duly  authenticated  copy  of  the 
statute  itself;  for  the  law  always  requires  the  best  evidence  of  which  the 
case  is  susceptible.  When  I  say  it  must  be  duly  authenticated,  I  mean  that 
it  must  be  authenticated  in  the  manner  hereinafter  mentioned,  unless  the 
laws  and  usages  of  the  country  do  not  admit  of  it.  Where  that  is  made  to 
appear,  the  court  will  not  require  what  is  thus  proved  to  be  unattainable ; 
but  until  such  proof  be  afforded  it  will  not  be  presumed  that  a  civilized  na- 
tion will  refuse  those  acts  for  authenticating  instruments  which  are  usual, 
and  are  deemed  necessary  for  the  purposes  of  justice.  2  Cranch,  237.  The 
usual  and  most  proper  modes  of  authentication  of  foreign  judgments  are, 
1.  By  an  exemplification  under  the  great  seal  (or  seal  of  the  nation) :  2. 
By  a  copy  proved  to  be  a  true  copy  by  the  oath  of  a  person  who  has  made 
it,  or  has  compared  it  with  the  original  :  3.  By  the  certificate  of  an  officer 
authorized  by  law,  which  certificate  must  itself  be  properly  authenticated. 
If  these  modes  of  authentication  be  beyond  the  reach  of  the  party,  and  so 
proved  to  be,  other  testimony  of  an  inferior  nature  may  be  received.  2 
Cranch,  238.  1  Peters,  225.  5  Ran.  126.  We  must  remark,  however, 
that  the  mere  difficulty  or  expense  or  inconvenience  of  obtaining  it,  does 
not  exc-use  the  failure  to  produce  the  best  testimony,  or  justify  the  introduc- 
tion of  that  which  is  inferior.  The  impracticability  only  of  acquiring  it 
will  have  this  efl'ect. 

Printed  copies  of  the  laws  of  a  foreign  state  are  not  evidence,  unless  duly 
authenticated.  1  Peters,  .382.  In  1  Dall,  462,  however,  the  court  of  Penn- 
sylvania unanimously  decided  that  the  printed  laws  of  Virginia  were  admis- 
sible without  authentication. 

The  authentication  of  the  statutes  of  a  foreign  state  ought,  like  that  of 
judgments,  to  be  either  by  ati  exemplification  under  the  great  seal,  or  by  a 
proved  copy  taken  from  the  original,  or  by  certificate  of  an  officer  thereto 
legally  authorized,  which  certificate  must  be  legally  authenticated.  The 
great  seal  of  a  foreign  state  proves  itself,  3  Leigh,  816; — admitted  arg-wen- 
do,  3  Wheat.  624.  So  of  the  seals  of  the  states  of  this  union.  4  Dall. 
416.  But  the  seal  of  a  newly  created  government,  not  yet  acknowledged 
as  an  independant  state,  does  not  prove  itself.  3  Wheat.  610.  4  Wheat. 
298.     See  Norris's  Peake,  191,  &c. 

As  to  the  unwritten  law  of  a  foreign  state,  that  can  only  be  proved  by 
parol,  and  the  evidence  of  witnesses  of  competent  skill  and  knowledge  is 
consequently  admissible  to  establish  what  it  is.  6  Cranch,  274.  1  John. 
585.     3  John.  105.     The  court  itself  will  also  assist  the  jury  in  ascertain- 


284  OF  TRIAL  BY  JURY.  [  BOOK  3. 

in<y  it.     Cowper,  174.     But  when  it  is  ascertained,  it  is  the  province  of  the 
court  to  construe  it  and  decide  on  its  effect.     1  Peters,  2-25. 

IV.  "A  fourth  species  of  trial  is  that  by  witnesses,  per  testes,  without  the 
intervention  of  a  jury.  This  is  the  only  method  of  trial  known  to  the  civil 
law  ;  in  which  the  judge  is  left  to  form  in  his  own  breast  his  sentence  upon 
the  credit  of  the  witnesses  examined  :  but  it  is  very  rarely  used  in  our  law, 
which  prefers  the  trial  by  jury  before  it  in  almost  every  instance."  This 
mode  of  trial  is  the  accustomed  mode  in  the  courts  of  equity,  which  decide 
upon  the  depositions  of  witnesses  without  the  intervention  of  a  jury,  except 
in  those  cases  where  issues  are  directed  to  satisfy  the  conscience  of  the 
chancellor,  and  in  issues  devisavit  vcl  non,  which  are  specially  required  by 
statute,  where  the  validity  of  a  will  is  called  in  question. 

In  the  courts  of  law,  too,  in  various  cases,  where  they  exercise  powers, 
which,  under  the  English  system  of  jurisprudence,  were  exercised  by  the 
eeclesiastical  courts  or  other  tribunals  proceeding  upon  the  principles  of 
the  civil  law,  the  court,  without  a  jury,  take  cognizance  of  the  question  of 
fact,  as  well  as  of  law,  and  decide  upon  the  examination  of  witnesses. 
Such  are  the  cases  of  probate  of  wills,  and  granting  letters  of  administra- 
tion, and  letters  testamentary.  Such,  too,  are  certain  cases  connected  in 
6ome  degree  with  the  police  of  the  country,  as  the  establishment  of  roads, 
or  ferries,  or  mills,  in  which  the  court  of  itself  decides,  without  the  assist- 
ance of  a  jury,  many  of  the  most  important  questions,  although  others  are 
confided  solely  to  the  jury  of  inquest  required  to  be  taken  by  the  sheriff, 
under  a  writ  of  ad  quod  damnum. 

V.  Of  the  trial  by  battle,  which  is  next  mentioned  by  Mr.  Blackstone, 
we  have  not  a  trace  in  Virginia.  It  is  now  abolished  in  England.  59  Geo. 
in.  ch.  46. 

VI.  The  sixth  species  of  trial  mentioned  by  Mr.  Blackstone,  is  the  wager 
of  law ;  which  is  entirely  disused  in  Virginia,  if  indeed  it  be  yet  in  force 
here.  Yet  as  we  have  no  express  adjudication  which  authorizes  its  exclu- 
sion from  the  enumeration  of  the  different  species  of  trial,  I  deem  it  my 
duty  to  recommend  to  the  student  Mr.  Blackstone's  account  of  it.  It 
has,  indeed,  been  lately  decided  in  England  still  to  exist.  1  Bos.  &  Pul. 
291.  2  B.  &  C.  538.  4  Dow.  &  Ryl.  3.  [Chitty's  note,  3  B.  C.  341.] 
It  can  only  be  resorted  to,  however,  in  the  action  of  debt  on  simple  contract, 
the  action  of  detinue  and  the  action  of  account,  technically  so  called.  I 
have  never  known  it  attempted,  though  thousands  of  cases  of  the  two  first 
descriptions  are  daily  occurring.  The  Bill  of  Rights,  Art.  11,  has  been  sup- 
posed by  the  late  annotator  on  Blackstone's  Commentaries,  to  have  abolish- 
ed the  trial  by  battle  ;  and  if,  as  to  that,  his  inference  be  fair,  it  is  equally 
strong  against  the  wager  of  law. 


CHAPTER  XVII. 

OF  THE  TRIAL  B'^  JURY. 

The  subject  of  our  next  inquiries,  will  be  the  nature  and  method  of  the 
trial  by  jury,  which  is  also  usually  termed  in  the  law  the  trial  ;>cr  ^ais,  or 
by  the  country. 

Trials  by  jury  in  civil  causes  are  said  by  Mr.  Blackstone  to  be  of  two 
kinds,  extraordinary  and  ordinary.  The  latter  only,  I  believe,  are  known 
among  us,  unless  we  designate  as  extraordinary  the  juries  summoned  up- 
on writs  of  ad  quod  damivnn,  or  in  cases  of  forcible  entry  and  detainer. 
We  have,  indeed,  an  extraordinary  jury  for  the  trial  of  impeachments,  of 
which  the  etudent  will  find  an  account  in  1  R.  C.  ch.  168.     But  the  object 


CHAP.  17.]  OF  TRIAL  BY  JURY.  285 

of  our  particular  attention  at  this  time,  is  the  ordinary  trial  by  jury,  which 
is  the  peculiar  favorite  of  our  system  of  laws,  and  to  which  the  bill  of  rights 
and  the  constitution  of  the  United  States  have  attributed  the  highest  degree 
of  sanctity.  Bill  of  rights,  art.  11.  C.  U.  S.  art.  3,  §  2,  art.  9.  See  also, 
1  R.  C.  ch.  166,  nearly  a  transcript  from  Magna  Charta. 

Of  this  ordinary  trial  by  jury,  as  existing  at  this  time  in  Virginia,  the  fol- 
lowing account  may,  perhaps,  prove  satisfactory;  though  the  student  will 
find  his  labor  amply  repaid  in  perusing  with  attention  Mr.  Blackstone's 
history  of  the  more  complicated  course  of  proceeding  in  the  English  courts 
of  justice. 

"In  England  when  an  issue  is  joined,  by  these  words,  'and  this  the  said 
A  prays  may  be  inquired  of  by  the  country,'  or  '  and  of  this  he  puts  him- 
self upon  the  country, — and  the  said  B  does  the  like,'  the  court  awards  a 
writ  of  venire  facias  upon  the  roll  or  record,  commanding  the  sheriff  'that 
he  cause  to  come  here  on  such  a  day,  twelve  free  and  lawful  men,  liberos  et 
legales  homines,  of  the  body  of  his  county,  by  whom  the  truth  of  the  mat- 
ter may  be  better  known,  and  who  are  neither  of  kin  to  the  aforesaid  A, 
nor  the  aforesaid  B,  to  recognize  the  truth  of  the  issue  between  the  said 
parties.'  And  such  writ  was  accordingly  issued  to  the  sheriff]"  according 
to  the  course  of  the  common  law,  but  it  is  in  fact  never  issued  with  us  ;  for 
after  the  issue  is  made  up,  and  the  cause  is  placed  upon  the  docket,  it 
stands  ready  for  trial,  whenever  it  shall  in  its  turn  be  called  by  the  court. 
The  sheriff*  indeed,  though  he  receives  no  specific  order  to  summon  a  jury 
for  the  trial  of  any  particular  case,  is  by  law  directed  to  summon  every  day 
of  the  session  of  the  court  a  sufficient  number  of  jurors  for  the  dispatch 
of  the  business  of  the  day  ;  and  from  the  list  of  jurors  so  summoned,  he 
himself  details  or  calls  twelve  persons  qualified  as  the  law  directs,  who  are 
sworn  at  the  clerk's  table  to  try  the  issue  or  issues  joined  between  the 
plaintiff"  and  defendant,  and  to  give  a  true  verdict  according  to  the  evidence. 

"  If  the  sheriff"  be  not  an  indiff'erent  person  ;  as  if  he  be  a  party  in  the 
suit,  or  be  related  by  either  blood  or  affinity  to  either  of  the  parties,  he  is 
not  then  trusted  to  return  the  jury,  but  the  venire  shall  be  directed  to  the 
coroners,  who  in  this,  as  in  many  other  instances,  are  the  substitutes  of  the 
sheriff",  to  execute  process  when  he  is  deemed  an  improper  person.  If  any 
exception  lies  to  the  coroners,  the  venire  shall  be  directed  to  two  clerks  of 
the  court,  or  two  persons  of  the  county  named  by  the  court,  and  sworn. 
And  these  two,  who  are  called  elisors,  or  electors,  shall  indiffierently  name 
the  jury,  and  their  return  is  final ;  no  challenge  being  allowed  to  their  ar- 
ray." These  salutary  provisions  of  the  common  law  are  yet  in  force  in 
Virginia,  although  only  partially  enacted  into  our  statutes.  No  instance 
has  ever  occurred  within  my  recollection,  in  which  elisors  or  electors  have 
been  rendered  necessary. 

The  trial  by  jury  must  be  confessed  to  be  on  a  very  unfavorable  footing 
in  Virginia.  The  few  regulations  adopted  by  our  laws  for  securing  intelli- 
gent and  impartial  jurors,  are  to  be  found  in  the  1  R.  C.  ch.  75.  It  is  there 
provided  that  the  sheriff"s  shall  summon  for  the  trial  of  all  cases  in  the  su- 
perior courts,  every  day  of  their  session,  a  sufficient  number  of  qualified  by- 
standers ;  it  farther  gives  power  to  the  court,  where  it  deems  it  necessary 
to  secure  the  attendance  of  fit  jurors  on  any  subsequent  day  of  the  term,  to 
direct  the  sheriff"  to  summon  previously  any  number  not  above  twenty-four. 
Under  this  power,  the  courts  now  usually  make  such  order  every  day,  as 
of  course,  directing  jurors  to  be  summoned  for  the  ensuing  day  ;  and  these 
are  selected,  not  from  by-standers  only,  but  from  any  part  of  the  county. 
In  land  causes,  and  in  all  cases  depending  in  the  superior  courts,  jurors 
must  be  freeholders,  and  possessed  of  a  visible  estate  to  the  value  of  three 
hundred  dollara.     In  the  county  courts  they  must  have  a  visible  estate  of 


286  OF  TRIAL  BY  JURY.  [  BOOK  3. 

the  value  of  one  hundred  and  fifty  dollars.  Infants  cannot  be  jurors.  Ju- 
ries de  viedietale  lingiuR  may  be  directed  by  the  courts  respectively.  No 
exception  can  be  taken  to  a  juror  after  he  is  sworn,  on  account  of  any  legal 
disability.  Jurors  are  punishable  by  fine  and  imprisonment  for  taking 
bribes.  1  R.  C.  ch.  148,  §  3,  ch.  75,  §  18.  They  are  also  prohibited  from 
conversing  even  with  the  sheriff',  but  by  order  of  court ;  and  they  are  re- 
quired, if  they  know  any  thing  of  the  point  in  issue,  to  disclose  it  in  open 
court.  In  the  case  of  the  Commonwealth  vs.  M'Caull,  the  duty  of  jurors, 
and  of  officers  in  whose  care  they  are  placed,  was  mucii  discussed.  Virg. 
Ca.  301,  306.  To  that  case  I  must  content  myself  with  referring  the  stu- 
dent here. 

"  As  the  jurors  appear,  when  called,  they  shall  be  sworn,  unless  challeng- 
ed by  either  party.  Challenges  are  of  two  sorts  ;  challenges  to  the  array, 
and  challenges  to  the  polls. 

"  Challenges  to  the  array  are  at  once  an  exception  to  the  whole  pannel, 
in  which  the  jury  are  arrayed,  or  set  in  order  by  the  sheriff"  in  his  return  ; 
and  they  may  be  made  upon  account  of  partiality  or  some  default  in  the 
sheriff^,  or  his  under-ofticcr,  who  arrayed  the  panel.  And,  generally  speak- 
ing, the  same  reasons  that  before  awarding  the  venire  were  sufficient  to  have 
directed  it  to  the  coroners  or  elisors,  will  be  also  sufficient  to  quash  the  ar- 
ray, when  made  by  a  person  or  officer  of  whose  partiality  there  is  any  tole- 
rable ground  of  suspicion.  Also,  though  there  be  no  personal  objection 
against  the  sheriff",  yet  if  he  arrays  the  pannel  at  the  nomination,  or  under 
the  direction  of  either  party,  this  is  good  cause  of  challenge  to  the  array. 
Also,  by  the  policy  of  the  ancient  law,  the  jury  was  to  come  de  viclncto, 
from  the  neighborhood  of  the  vill  or  place  where  the  cause  of  action  was 
laid  in  the  declaration  :  and,  therefore,  some  of  the  jury  were  obliged  to  be 
returned  from  the  hundred  in  which  such  vill  lay;  and,  if  none  were  re- 
turned, the  array  might  be  challenged  for  defect  of  hundredors."  But  this 
has  ceased  even  to  be  the  law  in  England,  and  with  us  the  jury  has  always 
been  summoned  from  the  body  of  the  county.  The  array,  however,  may 
be  challenged  where  an  alien  is  party  to  the  suit,  if  he  has  obtained,  as  he 
may,  an  order  to  summon  a  jury  de  medietale  linguce,  (that  is,  one  half  fo- 
reigners, though  not  necessarily  his  countrymen  :  Hawk.  B.2ch.  43,  §  42,) 
and  the  sheriff  has  failed  to  pursue  the  command  of  the  court.  If,  indeed, 
there  be  not  aliens  enough  in  the  place,  it  is  an  answer  to  the  challenge ; 
and  it  may  be  added,  that  if  both  parties  are  aliens,  the  privilege  of  a  jury 
de  medietale  does  not  exist.  I  have  never  witnessed  an  instance  of  such  a 
jury  being  ordered. 

"Challenges  to  the  polls,  in  capita,  are  exceptions  to  particular  jurors  ; 
and  seem  to  answer  the  recusatio  judicis  in  the  civil  and  canon  hiws;  by 
the  constitutions  of  which  a  judge  might  be  refused  u])on  any  suspicion  of 
partiality.  By  the  laws  of  England  also,  in  the  times  of  Bracton  and  Fle- 
ta,  a  judge  might  be  refused  for  good  cause  ;  but  now  tiie  law  is  otherwise, 
and  it  is  held  that  judges  and  justices  cannot  be  challenged.  For  the  law 
will  not  suppose  a  possibility  of  bias  or  favor  in  a  judge,  who  is  already 
sworn  to  administer  impartial  justice,  and  whose  authority  greatly  depends 
upon  that  presumption  and  idea.  And  should  the  fact  at  any  time  prove 
flagrantly  such,  as  tiie  delicacy  of  the  law  will  not  presume  beforehand, 
there  is  no  doubt  but  that  such  misbehaviour  would  draw  down  a  heavy 
censure  from  those  to  whom  the  judge  is  accountable  for  his  conduct. 

"  But  challenges  to  the  j)olls  of  the  jury  (who  are  judges  of  fact)  are  re- 
duced to  four  heads  by  Sir  Edward  Coke  ;  propter  honoris  respectum ;  prop- 
ter defectum  ;  propter  affectum  ;  and  propter  delictum. 

1.  "  Propter  honoris  respectum,  as  if  a  lord  of  parliament  be  impannelled 
on  a  jury,  he  may  be  challenged  by  either  party,  or  he  may  challenge  him- 
eelf."     This  cause  of  challenge  cannot  exist  with  ua. 


CHAP. 


17.]  OF  TRIAL  BY  JURY.  287 


2.  "Propter  defectum,  as  if  a  juryman  be  an  alien  born,  this  is  defect  of 
birth  ;  if  he  be  a  slave  or  bondman,  this  is  defect  of  liberty,  and  cannot  be 
liber  et  legalis  homo.  Under  the  word  homo  also,  though  a  name  common 
to  both  sexes,  the  female  is  however  excluded,  propter  defectum  sexus ;  ex- 
cept when  a  widow  feigns  herself  with  child,  in  order  to  exclude  the  next 
heir,  and  a  suppositious  birth  is  suspected  to  be  intended  :  then  upon  the 
writ  de  venire  inspiciendo,  a  jury  of  women  is  to  be  impannelled  to  try  the 
question,  whether  with  child  or  not.  But  the  principal  deficiency  is  defect 
of  estate  sufficient  to  qualify  him  to  be  a  juror."  This  depends  upon  the 
statute  before  mentioned,  (I  R.  C.  ch.  75,)  which  fixes  the  qualifications  of 
jurors  as  has  been  already  stated. 

3.  "Jurors  may  be  challenged  propter  affectum,  for  suspicion  of  bias  or 
partiality.  This  may  be  either  a  principal  challenge,  or  to  the  favour.  A 
principal  challenge  is  such,  where  the  cause  assigned  carries  with  '\t  prima 
facie  evident  marks  of  suspicion,  either  of  malice  or  favour:  as,  that  a  ju- 
ror is  of  kin  to  either  party  within  the  ninth  degree  ;  that  he  has  been  arbi- 
trator on  either  side  ;  that  he  has  an  interest  in  the  cause  ;  that  there  is  an 
action  depending  between  him  and  the  party  ;  that  he  has  taken  money  for 
his  verdict ;  that  he  has  formerly  been  a  juror  in  the  same  cause  ;  that  he 
is  the  party's  master,  servant,  counseller,  steward,  or  attorney,  or  of  the 
same  society  or  corporation  with  him :  all  these  are  principal  causes  of 
challenge;  which,  if  true,  cannot  be  overruled,  for  jurors  must  be  omni  ex- 
ceplione  majores.  Challenges  to  the  favour,  are  where  the  party  hath  no- 
principal  challenge  :  but  objects  only  to  some  probable  circumstances  of 
suspicion,  as  acquaintance  and  the  like  ;  the  validity  of  which  must  be  left 
to  the  determination  of  triors,  whose  office  it  is  to  decide  whether  the  juror 
be  favourable  or  unfavourable.  The  triors,  in  case  the  first  man  called  be 
challenged,  are  two  indifferent  persons  named  by  the  court  ;  and  if  they  try 
one  man  and  find  him  indifferent,  he  shall  be  sworn  ;.  and  then  he  and  the 
two  triors  shall  try  the  next ;  and  when  another  is  found  indiff'erent  and 
sworn,  the  two  triors  shall  be  superseded,  and  the  two  first  sworn  on  thje 
jury  shall  try  the  rest. 

4.  "  Challenges  propter  delictum,  are  for  some  crime  or  misdemesnor 
that  aflfects  the  juror's  credit  and  renders  him  infamous.  As  for  a  convic- 
tion of  treason,  felony,  perjury,  or  conspiracy  ;  or  if  for  some  infamous  of- 
fence he  hath  received  judgment  of  the  pillory,  tumbrel,  or  the  like;  or  to 
be  branded,  whipt,  or  stigmatized  ;  or  if  he  be  outlawed  or  excommunicat- 
ed, or  hath  been  attainted  of  false  verdict, /)rae»u<tt ire,  or  forgery  ;  or  lastly, 
if  he  hath  proved  recreant  when  champion  in  the  trial  by  battel,  and  there- 
by hath  lost  his  liberam  legem.  A  juror  may  himself  be  examined  on  oath 
of  voir  dire,  veritatem  dicere,  witli  regard  to  such  causes  of  challenge  as 
are  not  to  his  dishonour  or  discredit;  but  not  with  regard  to  any  crime,  or 
any  thing  which  tends  to  his  disgrace  or  disadvantage. 

"Besides  these  challenges,  which  are  exceptions  against  the  fitness  of 
jurors,  and  whereby  they  may  be  excluded  from  serving,  there  are  also  other 
causes  to  be  made  use  of  by  the  jurors  themselves,  which  are  matter  of  ex- 
emption ;  whereby  their  service  is  excused,  and  not  excluded."  Such  is  the 
case  of  clergymen  and  physicians,  and  of  the  aged  and  infirm,  who  are  ex- 
cused at  the  discretion  of  the  court ;  of  counsel  and  attorneys  who  are  con- 
sidered as  exempt  from  the  station  which  they  hold,  and  of  infants  who  are 
specially  disqualified  by  particular  statute.     1  R.  C.  ch.  75,  §  12. 

According  to  the  course  of  proceeding  in  the  English  courts,  if  "by 
means  of  challenges,  or  other  cause,  a  sufficient  number  of  unexceptionable 
jurors  doth  not  appear  at  the  trial,  either  party  may  pray  a  tales.  A  tales 
is  a  supply  of  such  men  as  are  summoned  upon  the  first  pannel,  in  order 
to  make  up  the  deficiency.  For  this  purpose  a  writ  of  decern  tales,  octo 
talesj  apd  the  like,  was  used  to  be  issued  to  the  sheriff  at  cornnion  law, 


^  .;* 


288  OF  EVIDENCE.  [  book  3. 

and  must  be  still  so  done  at  a  trial  at  bar,  if  the  jurors  make  default.  Buti 
at  the  assizes  or  }iisi  prius,  by  virtue  of  the  statute  35  Hen.  VIII.  c.  6,  and 
other  subsequent  statutes,  the  judge  is  empowered  at  the  prayer  of  either 
party  to  award  a  tales  de  circumstantibus,  of  persons  present  in  court,  to  be 
joined  to  the  other  jurors  to  try  the  cause  ;  who  are  liable,  however,  to  the 
same  challenge  as  the  principal  jurors.  [With  us  a  writ  of  tales  is  never 
issued  but  when  the  sheriff's  pannel  is  exhausted,  he  is  orally  directed  by 
the  court  to  call  by-standers.]  This  is  usually  done,  till  the  legal  number 
of  twelve  be  completed  ;  in  which  patriarchal  and  apostolical  number  Sir 
Edward  Coke  hath  discovered  abundance  of  mystery. 

"  When  a  suflicient  number  of  persons  impannelled,  or  /a/es-men,  appear, 
they  are  then  separately  sworn,  well  and  truly  to  try  the  issue  between  the 
parties,  and  a  true  verdict  to  give  according  to  the  evidence  ;  and  hence 
they  are  denominated  the  jury,  jwra/a,  and  jurors,  sc.juratores. 

"  The  jury  are  now  ready  to  hear  the  merits  ;  and,  to  fix  their  attention 
the  closer  to  the  facts  which  they  are  impanelled  and  sworn  to  try,  the 
pleadings  are  opened  to  them  by  counsel  on  that  side  which  holds  the  affirm- 
ative of  the  question  in  issue.  For  the  issue  is  said  to  lie,  and  proof  is 
always  first  required  upon  that  side  which  affirms  the  matter  in  question  ; 
in  which  our  law  agrees  with  the  civil  ;  '  ei  incumbit  probatio  qui  dicit,  non 
qui  negat ;  cum  per  rerum  naluram  factum-negantis  probatio  nulla  sit.'  The 
opening  counsel  briefly  informs  them  of  the  parties,  the  nature  of  the  ac- 
tion, the  declaration,  the  plea,  replication,  and  other  proceedings,  and  lastly, 
upon  what  point  the  issue  is  joined,  which  is  there  set  down  to  be  deter- 
mined. Instead  of  which,  formerly,  the  whole  record  and  process  of  the 
pleadings  was  read  to  them  in  English  by  the  court,  and  the  matter  in  issue 
clearly  explained  to  their  capacities.  The  nature  of  the  case,  and  the  evi- 
dence intended  to  be  produced,  are  next  laid  before  them  by  counsel,  also 
on  the  same  side  :  and  when  their  evidence  is  gone  through,  the  advocate 
on  the  other  side  opens  the  adverse  case,  and  supports  it  by  evidence  ;  and 
then  the  party  which  began  is  heard  by  way  of  reply. 

"  The  nature  of  my  present  design  will  not  permit  me  to  enter  into  the 
numberless  niceties  and  distinctions  of  what  is,  or  is  not,  legal  evidence  to 
a  jury.  I  shall  only,  therefore,  select  a  few  of  the  general  heads  and  lead- 
ing maxims,  relative  to  this  point,  together  with  some  observations  on  the 
manner  of  giving  evidence.  [The  student  will  consult  Peake,  Philips,  and 
Starkie  on  the  subject.] 

"And,  first,  evidence  signifies  that  v/hich  demonstrates,  makes  clear,  or 
ascertains  the  truth  of  the  very  fact  or  point  in  issue,  either  on  the  one  side 
or  on  the  other;  and  no  evidence  ought  to  be  admitted  to  any  other  point. 
Therefore,  upon  an  action  for  debt,  when  the  defendant  denies  his  bond  by 
the  plea  of  non  est  factum,  and  the  issue  is,  whether  it  be  the  defendant's 
deed  or  no  ;  he  cannot  give  a  release  of  this  bond  in  evidence  :  for  that 
does  not  destroy  the  bond,  and  therefore  does  not  prove  the  issue  which 
he  has  chosen  to  reply  upon,  viz.  that  the  bond  has  no  existence. 

"  Again  ;  evidence  in  the  trial  by  jury  is  of  two  kinds,  either  that  which 
is  given  in  proof,  or  that  which  the  jury  may  receive  by  their  own  private 
knowledge.  The  former,  ox  proofs,  (to  which  in  common  speech  the  name 
of  evidence  is  usually  confined,)  are  either  written,  or  parol,  that  is,  by 
word  of  mouth.  Written  proofs,  or  evidence,  are,  1.  Records,  and  2.  An- 
cient deeds  of  thirty  years'  standing,  which  prove  themselves  ;*  but  3.  Mo- 

•  Tlie  same  rule  applies  to  wills  thirty  years  old.  4  T.  R.  709,  note.  Tliis  rule  is  laid  down  in 
books  of  evidence  without  sufficient  explanation  of  its  principle,  or  of  the  extent  of  its  application. 
There  seems  to  be  dangerin  pcnniitinj;  adeed  to  be  read,  merely  because  it  bears  date  above  thirty 
years  before  its  production,  and  in  reqiiiiing  r.o  evidence,  where  a  forgery  may  be  committed  with 
•  he  least  probability  of  detection.  Chief  Baron  Gilbert  lays  down,  that  where  possession  has  gone 
agreeably  to  the  limitations  of  a  deed  bearing  date  thirty  yeari  ago,  it  may  be  read  without  any  evi- 
dence of  its  execution,  though  the  subscribing  witness  be  still  living.  Law  of  Ev.94.  For  such  poa- 
■eeeion  nfiorda  bo  etrong  a  prciumption  io  favor  of  the  authenticity  of  tlie  deed,  as  to  tupersede  tlie 


CHAP.  17.]  OF  EVIDENCE.  289 

dern  deeds,  and  4.  Other  writingg  must  be  attested  and  verified  by  parol 
evidence  of  witnesses.  And  the  one  general  rule  that  runs  through  ail  the 
doctrine  of  trials  is  this,  that  the  best  evidence  the  nature  of  the°case  will 
admit  of  shall  always  be  required,  if  possible  to  be  had  ;  but  if  not  pos- 
sible, then  the  best  evidence  that  can  be  had  shall  be  allowed.*  For  if  it 
be  found  that  there  is  any  better  evidence  existing  than  is  produced,  the 
very  not  producing  it  is  a  presumption  that  it  would  have  detected  some 
falsehood  that  at  present  is  concealed.  Thus,  in  order  to  prove  a  lease  for 
years,  nothing  else  shall  be  admitted  but  the  very  deed  of  lease  itself,  if  in 
being  ;  but  if  that  be  positively  proved  to  be  burnt  or  destroyed,  (not  relying 
on  any  loose  negative,  as  that  it  cannot  be  found,  or  the  like,)  [see  2  Ran. 
539,]  then  an  attested  copy  may  be  produced  ;  or  jmrol  evidence  be  given 
of  its  contents.  So,  no  evidence  of  a  discourse  with  another  will  be  ad- 
mitted, but  the  man  himself  must  be  produced  ;  yet  in  some  cases,  (as  in 
proof  of  any  general  customs,  or  matters  of  common  tradition  or  repute,) 
the  courts  admit  of  /tearsay  evidence,  or  an  account  of  what  persons  de- 
ceased have  declared  in  their  life-time;  but  such  evidence  will  not  be  re- 
ceived of  any  particular  facts. t     So,  too,  books  of  account,  or  shop-books 

necessify  of  any  oilier  proof  of  the  validity  of  itsorigin,  or  of  its  due  exerulion.  The  court  of  kiiig'd 
bench  have  delermine<l  that  the  mere  production  of  a  parish  certificate,  dated  ahove  thirty  years  ago, 
was  sufficient  to  make  it  evidence,  without  giving  any  account  of  the  custody  from  which  it  was  ex- 
tracted.   5  T.  R.  y.J9.    Mr.  Christian's  note.    See  2  Wash.  276. 

*  No  rule  of  law  is  more  frequently  cited,  and  more  generally  misconceived,  than  this.  It  is  certain- 
ly true  wiien  rightly  understood;  but  it  is  very  liuuted  in  its  extent  and  application.  It  signifies  no- 
diing  more  than  that,  if  the  liest  legal  evidence  cannot  be  possibly  produced,  the  next  best  legal  evi- 
dence shall  be  admitted.  Evidence  may  be  divided  into  primary  and  secondary  ;  and  the  secondary 
evidence  is  as  accurately  defined  by  the  law  as  the  primary.  But  in  general  the  want  of  better  evi- 
dence can  never  justify  the  admission  of  hearsay,  interested  witnesses,  or  the  copies  of  copies,  &c. 
VVhere  there  are  exceptions  to  general  rules,  these  exceptions  are  as  much  recognized  by  the  law  as 
the  general  rule:  and  where  boundr.ries  and  limits  are  esliiblished  by  the  law  for  every  case  that  can 
possibly  occur,  it  is  immaterial  what  we  call  the  rule, and  what  the  exception. — Mr.  Clu-istian's  note, 

t  It  is  a  general  rule  that  the  mere  recital  of  a  fact,  that  is,  the  mere  oral  assertion  or  written  entry 
by  an  individual,  that  a  particular  fact  is  true,  cannot  be  received  in  evidence.  But  the  objection 
does  not  apply  to  any  public  documents  made  under  lawful  authority,  such  as  gazettes,  proclamations, 
public  siirve>s,  records,  and  other  memorials  of  a  similar  description,  or  whenever  the  declaration  or 
entry  is  in  itself  a  fact,  ami  is  part  of  the  tes gestae.  Stark,  on  Evid.  p.  1,4G,  7.  But  il  is  to  be  care- 
fully observed,  that  neither  the  declaration,  nor  any  other  acts  of  those  who  are  mere  strangers,  or 
as  it  is  usually  termed,  any  res  inter  alias  acta,  is  admissible  in  evidence  against  any  one,  as  affording 
a  presumption  against  him  in  the  way  of  admission,  or  otherwise,    lb.  5], 

In  cases  of  customs  and  prescriptive  rii;hts,  hearsay  or  traditional  evidence  is  not  admitted  until 
some  instances  of  the  custom  or  exercise  of  the  right  claimed  are  first  proved.  The  declarations  of 
parents  lespecting  their  marriage,  and  the  legitimacy  of  their  children,  are  admitted  after  their  de- 
cease as  evidence.  And  hearsay  is  also  received  respecting  pedigrees  and  the  death  of  relations 
abroail.  Bull.  N.  P.  294.  2  Esp.784.  What  lias  lieen  said  in  conversation  in  the  hearing  of  any  par- 
ty, if  not  contradicted  bj'  him,  may  be  given  in  evidence;  for,  not  being  denied,  it  amounts  to  a  spe- 
cies of  confession.  But  it  can  only  be  received  where  it  must  be  presumed  to  have  been  heard  by  the 
party,  and  therefore,  in  one  case,  the  court  slopped  the  witness  from  repeating  a  conversation  which 
had  passed  in  a  room  where  the  prisoner  was,  but  at  the  time  while  she  liad  fainted  away.  It  has 
been  the  practice  of  the  quarter-sessions  to  admit  the  declarations  of  paupers  respecting  their  settle- 
ments to  be  received  as  evidence  after  their  death,  or  if  living,  where  they  could  not  be  produced.  See 
3T.  11.707,  where  the  judges  of  the  king'sbench  were  divided  upon  ihe  legality  of  this  practice,  and 
where  the  subject  of  hearsay  evidence  is  much  discussed.  For  many  years,  whilst  Lord  Mansfield 
presided  in  Ihe  court  of  king's  bench,  the  court  were  unanimously  of  opinion,  that  the  declarations 
of  a  pauper  respecting  his  seiilcment  might,  after  his  death,  be  proved  and  given  in  evidence.  VVhea 
Lord  Kenyon  and  another  judge  were  introduced,  the  court  were  divided,  and  the  former  practice 
prevailed;  but  when  the  court  were  entirely  changed,  lliey  determined  that  this  hearsay  evidence 
was  not  founded  on  any  principles  of  law,  anil  that  the  evidence  at  the  quarter-sessions  in  the  cases 
of  settlement  ought  to  be  the  same  as  that  in  all  otiier  courts,  in  the  trials  which  could  respectively  be 
brought  before  them.  2  East,  54  &  G3.  The  court  of  king's  bench  has  decided,  that  a  father's  de- 
claration of  the  place  of  the  birth  of  his  son  is  not  evidence  after  the  father's  death.  8  East,  539. 
But  it  would  not,  probal)ly,  lie  difficult  to  prove  that  this  is  of  the  nature  of  pedigree,  and  ought  to  be 
admitted,  as  the  iaiher's  declaration  of  the  time  of  his  son's  birth,  which  has  always  been  legal  evi- 
dence. Ill  criminal  cases,  the  declarations  of  a  person,  who  relates  in  extremis,  or  under  an  appre- 
liension  of  dying,  the  cause  of  his  death,  or  any  other  material  circumstance,  maybe  admitted  in  evi- 
dence; for  the  mind  in  that  awful  state  is  presumed  to  be  under  as  great  a  religious  obligation  to  dis- 
close tile  truth,  as  is  created  by  the  administration  of  an  oath.  But  declarations  of  a  deceased  per- 
son ought  not  to  be  received, unless  ihe  court  is  satisfied,  from  the  circuiustances  of  the  case,  that  they 
were  made  under  the  impression  of  approaching  dissolution.  Leach's  Cases,  400.  But  the  decla- 
rations of  a  felon  at  the  place  of  execution  cannot  be  received,  as  he  is  incompetent  to  give  evidence 
upon  oath  ;  and  the  situation  of  a  dying  man  isonlv  thought  equivalent  to  that  of  a  competent  witness, 
wJiea  ha  ia  sworn.    Ibid.  276.    By  the  1  &  2  Bli.  "&  Mar.  c.  13,  depositions  taken  before  a  justice  of 

VOL.  2—37 


290  OF  EVIDENCE.  [  BOOK  3. 

are  not  allowed  of  themselves  to  be  given  in  evidence  for  the  owner  ;  but 
a  servant  who  made  the  entry  may  have  recourse  to  them  to  refresh  his 
memory  ;  and  if  such  servant  (who  was  accustomed  to  make  those  entries) 
be  dead,  and  his  hand  be  proved,  the  book  may  be  read  in  evidence  :  for, 
as  tradesmen  are  often  under  a  necessity  of  giving  credit  without  any  note 
or  writing,  this  is  therefore,  when  accompanied  with  such  other  collateral 
proofs  of  fairness  and  regularity,  the  best  evidence  that  can  be  then  produc- 
ed. However,  this  dangerous  species  of  evidence  is  not  carried  so  far  in 
Eno-land  as  abroad  ;  where  a  man's  own  books  of  accounts,  by  a  distortion 
of  the  civil  law,  (which  seems  to  have  meant  the  same  thing  as  is  practised 
with  us,)  with  the  suppletory  oath  of  the  merchant,  amount  at  all  times  to 
full  proof.  But  as  this  kind  of  evidence,  even  thus  regulated,  would  be 
much  too  hard  upon  the  buyer  at  any  long  distance  of  time,  the  statute  7 
Jac.  I,  c.  12,  (the  penners  of  which  seem  to  have  imagined  that  the  books 
of  themselves  were  evidence  at  common  law,)  confines  this  species  of  proof 
to  such  transactions  as  have  happened  witliin  one  year  before  the  action 
brought;  unless  between  merchant  and  merchant  in  the  usual  intercourse 
of  trade.  For  accounts  of  so  recent  a  date,  if  erroneous,  may  be  more  easi- 
ly unravelled  and  adjusted."     This  statute  is  not  in  force  in  Virginia. 

"  With  regard  to  parol  evidence,  or  vntnesses ;  it  must  be  remembered, 
that  there  is  a  process  to  bring  them  in  by  writ  of  stibpcena  ad  testifican- 
dum," which  commands  them  to  appear  at  the  trial  in  the  penalty  of  £100 
for  disobedience  ;  which  penalty  is,  however,  mere  matter  of  form,  as  the 
penalty  for  non-attendance  is  fixed  at  $16,  besides  the  liability  to  the  ac- 
tion of  the  party  grieved  for  damages.  This  stibpcena  is  placed  in  the  hands 
of  an  officer  to  execute  ;  or  it  may  be  executed  by  any  private  disinterest- 
ed person;  in  which  latter  case,  however,  if  it  is  designed  to  fine  the  wit- 
ness, or  to  continue  the  cause  for  want  of  his  attendance,  the  affidavit  of 
the  person  who  served  the  summons  will  be  necessary.  If  served  by  an 
officer,  his  return  (i.  e.  his  endorsement  of  service)  will  suffice  ;  for  as  he 
is  sworn  duly  to  execute  his  office,  all  his  acts  are  done  under  the  sanction 
of  an  oath.  The  usual  mode  of  proceeding  against  a  witness  who  fails  to 
appear,  thouo-h  summoned,  is  by  attachment  for  his  contempt.  See  1  R.  C. 
eh.  131,  §4.^ 

"  AH  witnesses,  of  whatever  religion  or  country,  that  have  the  use  of  their 
reason,  are  to  be  received  and  examined,  except  such  as  are  infamous,  or 
such  as  are  interested  in  the  event  of  the  cause.  All  others  are  competent 
witnesses;  though  the  jury  from  other  circumstances  will  judge  of  their 
credibility*  Infiimous  persons  are  such  as  may  be  challenged  as  jurors, 
propter  delictum ;  and,  therefore,  never  shall  be  admitted  to  give  evidence 
to  inform  that  jury,  with  whom  they  were  too  scandalous  to  associate.    In- 

peace  in  cases  of  felony,  may  be  read  in  evirlonce  at  the  trial, if  tlie  witness  dies  liefore  the  tiial.  But 
as  the  statute  confines  this  to  felony,  and  as  it  is  an  innovation  upon  llie  common  l;i\v,  it  cannot  be  ex- 
tended to  any  misdemeanor.  1  Salk.  281.  ftlr.  Christian's  note.  [See  1  Wash.  l"-23.  2  Wash.  146. 
4Mun.4:);3.    4Ran.611.J 

*'l"heold  rases  upon  the  competency  of  witnesses  have  gone  upon  very  subtle  grounds.  But  of  late 
yerrs  the  court*  have  endeavored,  as  far  as  possible,  consistent  witli  authorities,  to  let  the  objection 
go  lo  ihe  credit,  rather  than  10  the  competency  of  a  witness."     Lord  iMaiisfield,  I  T.  K.  300. 

It  is  now  established,  that  if  a  witness  does  not  immediately  gain  or  lose  by  the  event  ol  Ihe  cause, 
and  il'  the  verdictt  in  the  cause  cannot  be  evidence  cither  for  or  against  him  in  any  other  suit,  he  siiall  ^ 
\ie  a<ln)inpd  as  a  competent  witness,  thouiih  the  circumstances  of  the  case  may  in  some  degree  lessen 
liis  credibility-  3  '1'.  K.  27.  'I'he  interest  n>usl  be  a  present,  certain,  vested  interest,  and  not  uncer- 
tain or  coniingent ;  Doug.  134.  1  T.  K.  ]G3.  1  P.  Wins.  2o7;  therefore,  the  iieir  apparent  is  com- 
petent in  support  of  the  claim  of  the  ancestor,  though  the  remainder-man,  iiaving  a  vested  interest,  is 
incompetent.  Salk.  2ii3.  Ld.  Haym.724.  A  clerk  of  the  company  of  wire-drawers  is  competent,  in 
an  action  against  a  pei  son  for  acting  as  an  assistant,  although  the  verdict  might  cause  the  delendant 
to  be  sworn,  upon  which  the  clerk  would  obtain  a  lee.    See  Stark,  on  Ev.  p.  4, 74i) 

A  servant  of  a  tradesman,  from  necessity,  is  permitted  in  an  action  by  his  master  to  prove  the  deli- 
very of  goods,  though  he  himself  may  have  purloined  them;  but  in  an  action  brought  against  the 
master  (or  the  negligence  of  his  servant,  the  servant  cannot  be  a  witness  (or  liis  master  wilTiout  a  re- 
lease; for  his  master  may  afterwards  have  his  action  against  the  servant,  and  the  verdict  recovered 
against  him  may  be  given  in  evidence  in  that  action  to  prove  the  damage  which  the  master  has  sus- 
tained.   4T.rv.5S9. 


CHAP.  17.]  OF  EVIDENCE.  291 

terested  witnesses  may  be  examined  upon  a  voir  dire,  if  suspected  to  be 
secretly  concerned  in  the  event ;  or  their  interest  may  be  proved  in  court. 
Which  last  is  the  only  method  of  supporting  an  objection  to  the  former 
class:  for  no  man  is  to  be  examined  to  prove  his  own  infamy.*  And  no 
counsel,  attorney,  or  other  person,  intrusted  with  the  secrets  of  the  cause 
by  the  party  himself,  shall  be  compelled,  or  allowed,  to  give  evidence  of 
such  conversation  or  matters  of  privacy,  as  came  to  his  knowledge  by  virtue 
of  such  trust  and  confidence  :t  but  he  may  be  examined  as  to  mere  matters 
of  fact,  as  the  execution  of  deed  or  the  like,  which  might  have  come  to  his 
knowledge  without  being  intrusted  in  the  cause. 

"  One  witness  (if  credible)  is  sufficient  evidence  to  a  jury  of  any  single 
facts,  though  undoubtedly  the  concurrence  of  two  or  more  corroborates  the 
proof.  Yet  our  law  considers  that  there  are  many  transactions  to  which 
only  one  person  is  privy ;  and  therefore  does  not  always  demand  the  testi- 
mony of  two,  as  (he  civil  law  universally  requires. 

"Positive  proof  is  always  required,  where  from  the  nature  of  the  case  it 
appears  it  might  possibly  have  been  had.  But  next  to  positive  proof,  cir- 
cumstantial evidence  or  the  doctrine  of  presumptions  must  take  place;  for 
when  the  fact  itself  cannot  be  demonstratively  evinced,  that  which  comes 
nearest  to  the  proof  of  the  fact  is  the  proof  of  such  circumstances  as 
either  necessarily,  or  usually,  attend  such  facts;  and  these  are  called  pre- 
sumptions, which  are  only  to  be  relied  upon  till  the  contrary  be  actually 
proved.  Stabitur  praesutnptioni  donee  probetur  in  co7Urarium.  Violent  pre- 
sumption is  many  times  equal  to  full  proof;  for  there  those  circumstances 
appear,  which  necessarily  attend  the  fact.  As  if  a  landlord  sues  for  rent 
due  at  Michaelmas  1754,  and  the  tenant  cannot  prove  the  payment,  but  pro- 
duces an  acquittance  for  rent  due  at  a  subsequent  time,  in  full  of  all  de- 
mands, this  is  a  violent  presumption  of  his  having  paid  the  former  rent,  and 
is  equivalent  to  full  proof;  for  though  the  actual  payment  is  not  proved,  yet 
the  acquittance  in  full  of  all  demands  is  proved,  which  could  not  be  with- 
out such  payment ;  and  it  therefore  induces  so  forcible  a  presumption,  that 
■no  proof  shall  be  admitted  to  the  contrary.!     Probable  presumption,  arising 

*A  witness  may  be  examined  witli  regard  to  his  own  infamy,  if  the  confession  of  it  does  not 
suljject  him  to  any  liiture  punislunent ;  as  a  witness  may  be  asked  if  he  lias  not  stood  in  tiie  pillory  for 
■perjury;  4  T.  R.  4411;  but  he  cannot  be  entirely  rejected  as  a  witness  without  the  production  of  the 
record  of  conviction,  by  which  he  is  rendered  incompetent.  8  East,  77.  Though  it  has  been  held, 
in  some  oilier  cases,  that  a  witness  is  not  bound  to  arisuer  smc\\  questions.  4  Sl.Tri.748.  ISalU.  J53. 
4  Esp.  225,  213.  It  is  quite  clear  that  a  man-is  not  bound  to  answer  any  questions,  either  in  a  court  of. 
law  or  equity,  which  may  tend  to  criminate  himself,  or  which  may  render  him  liable  to  a  penalty. 
Sira.444.  3Taunt.424.  8  St.  Tri.  G.  6ib.649.  16  Ves.  242.  2Ld.  Rajm.  1038.  ftlitford's  Ch.  PI.  ]5"7 
As  to  questions  which  merely  disgrace  the  witness,  there  is  some  difficulty.  See  Stark,  on  Ev.  pt.  2, 
J39.  Still  a  witness  is  in  no  case  legally  iiicompeieiit  to  allege  his  own  turpitude,  or  to  give  evidence 
•which  involves  liisown  infamy  ;  2  Stark.  Rep.  116.  8  East,  78.  HEast,309;  or  impeaches  his  own  so- 
lemn acts;  5  M.  &  S.  244.  7  T.  R.  604  ;  unless  he  be  rendered  incompetent  by  a  legal  interest  in  the 
event  of  the  cause,  or  in  the  record.  [See  3  Ran.  316.]  It  seems  to  be  an  universal  rule,  that  a  par- 
ticeps  criminis  may  be  examined  as  a  witness  in  both  civil  and  criminal  cases,  provided  he  has  not  been 
incapacitated  by  a  conviction  of  crime.  As  a  clerk  who  had  laid  out  money  which  he  had  embez- 
zled in  illegal  insurances,  was  held  to  be  a  competent  witness  for  the  master  against  the  insurer. 
Cowp.  197.  So  a  man  who  has  pretended  to  convey  lands  to  another,  mav  prove  that  he  had  no  title. 
Ld.  Riivm.  1008.  A  co-assignee  ot  a  ship  may  prove  that  lie  had  no  interest  in  the  vessel.  Cited  in 
1  T.  R.301.  The  parents  may  give  evidence  to  bastardize  their  issue,  C  T.  R.  330,  331,  or  to  prove 
the  legitimacy,  ib. :  though  it  is  said  the  sole  evidence  of  the  mother,  a  married  woman,  sliall  not  be 
sufficient  to  bastardize  her  child.    B.R.  H.79.     1  VVils.  310.  Chilty. 

t  [Jut  the  principles  and  policy  of  this  rule  restrain  it  to  that  confidence  only,  which  is  placed  in  a 
counsel  on  solicitor,  and  which  must  necessarily  be  inviolable,  where  the  use  of  advocates  and  legal 
assistants  is  admitted.  But  the  purposes  of  public  justice  supersede  the  delicacy  of  every  other  spe- 
cies of  confidential  communication.  In  the  trial  of  the  dwtchessof  Kingston,  it  was  determined  that 
a  friend  might  be  bound  to  disclose,  if  necessary,  in  a  court  of  justice,  secrets  of  the  most  sacred  na- 
ture which  one  sex  could  repose  in  the  other.  And  that  a  surgeon  was  bound  to  communicate  any 
information  whatever,  which  he  was  possessed  of  in  consequence  of  his  professional  attendance.  11 
St.  Tr.  243,  246.     [2  iMun.  1059.     4Mun.  273.J 

t  Presumptions  are  of  three  kinds:  1st.  Legal  presumption?,  made  by  the  law  itself;  2dly.  Legal 
presumptions  to  be  made  by  a  jury,  of  law  and  fact;  3dly.  Natural  presumptions  or  presumptions  of 
mere  fact. 

1st.  Legal  presumptions  are  in  some  cases  absolute,  as  that  a  bond  or  other  specialty  was  executed 
upon  a  good  consideration,  4  Burr.  2225,  so  loug  as  the  deed  or  bond  remains  unimpeacheu  ;  but  it 


292  BILLS  OF  EXCEPTIOxV.  [book  3. 

from  such  circumstances  as  usualh/  attend  the  fact,  liath  also  its  due  weight : 
as  if,  in  a  suit  for  rent  due  in  1754,  the  tenant  ])roves  the  payment  of  the 
rent  due  in  1755:  this  nill  prevail  to  exonerate  the  tenant,  unless  it  be 
clearly  shown  that  the  rent  of  1754  was  retained  for  some  special  reason, 
or  that  there  was  some  fraud  or  mistake  :  ibr  otherwise  it  Avill  be  presumed 
to  have  been  paid  before  that  in  1755,  as  it  is  most  usual  to  receive  the  first 
rents  of  longest  standing.  Light  or  rash  presumptions  have  no  weight  or 
validity  at  all.* 

"The  oath  administered  to  the  witness  is  not  only  that  what  he  deposes 
shall  be  true,  but  that  he  shall  also  depose  the  whole  truth  :  so  that  he  is 
not  to  conceal  any  part  of  what  he  knows,  whether  interrogated  particu- 
larly to  that  point  or  not.  And  all  this  evidence  is  to  be  given  in  open 
court,  in  the  presence  of  the  parties,  their  attorneys,  the  counsel,  and  all 
by-standers,  and  before  the  judge  and  jury :  each  party  having  liberty  to 
except  to  its  competency,  which  exceptions  are  publicly  stated,  and  by  the 
judge  are  openly  and  publicly  allowed  or  disallowed,  in  the  face  of  the 
country:  which  must  curb  any  secret  bias  or  partiality  that  might  arise  in 
his  own  breast. t  And  if,  either  in  his  directions  or  decisions,  he  misstates 
the  law  by  ignorance,  inadvertance,  or  design,  the  counsel  on  either  side 
may  require  him  publicly  to  seal  a  bill  of  exceptions ;  stating  the  point 
wherein  he  is  supposed  to  err;  and  this  he  is  obliged  to  seal  by  statute,  [1 
R.  C.  ch.  133,]  or,  if  he  refuses  so  to  do,  the  party  may  have  a  compulsory 
writ  against  him,  commanding  him  to  seal  it,  if  the  fact  alleged  be  truly 
stated  :  and  if  he  returns,  that  the  fact  is  untruly  stated,  when  the  case  is 
otherwise,  an  action  will  lie  against  him  for  making  a  false  return.  This 
bill  of  exceptions  is  in  the  nature  of  an  appeal  ;  examinable,  not  in  the 
court  in  which  the  trial  takes  place,  but  in  the  next  immediate  superior 
court  upon  a  writ  of  error,  appeal,  or  supersedeas,  as  the  case  may  be." 

The  law  having  entrusted  to  the  courts  the  administration  of  justice,  it  is 
ahvays  presumed  that  every  tribunal  by  whom  a  cause  has  been  tried  has 
done  what  was  right,  unless  the  contrary  apjjcars  upon  the  records  of  its 
proceeding;  nor  unless  this  does  appear,  will  any  appellate  court  reverse  or 
interfere  with  the  decision  of  an  inferior  tribunal.     jSfow  the  pleadings  and 

may  be  impeached  on  tlie  ground  of  fraud,  and  tlien  tlie  consideration  becomrs  (lie  subject  of  in- 
quiry. But  iu  the  case  of  bills  of  exchange,  the  presuinplion  that  it  was  accepted  for  a  good  consi- 
deration, may  bfi  rebutted  by  evidence.  So  wliere  a  fine  has  been  levied,  it  will  be  implied  that  U 
jiasbeen  levied  with  proclamations,  a  Co.  86,  b.  unless  lebutted,  Bui.  N.  P.  229,  and  some  other  like 
instances;  but  the  presumption  in  favourof  innocence  is,  il  has  been  held,  too  strong  lo  be  overcome 
by  an  artificial  intendment  of  law.  2  B.  &,  A.  386.  2dly.  Presumptions  of  law  and  fact,  as  that  ad- 
verse enjoyment  unqesiioned  for  twenty  years,  of  an  incorporeal  hereditamenl,  presumes  a  grant; 
that  a  bond  has  been  saiisfied  upon  whicli  no  isiierest  has  been  paid,  nor  oilier  acknowledgement 
made  of  its  existence  for  a  like  period  ;  2  Stra.  G26.  2  Ld.  Rayiri.  1370  ;  that  there  has  been  a  con- 
version in  the  case  of  trover,  where  the  defendant  refuses  to  deliver  them  up.  3d.  JNatiiral  pre- 
sumptions. It  is  the  peculiar  province  of  the  jury  to  deal  with  presumptions  of  this  class;  yet  v.  here 
the  particular  facts  are  inseparably  connected  according  to  the  usual  course  of  nature,  ilie  courts 
themselves  will  draw  the  inference,  as  when  a  child  has  been  born  within  a  few  weeks  after  the  ac- 
cess of  the  liusband,  ils  bastardy  will  be  inferred  wilhoul  Ihe  aid  of  a  jury.  8  East,  193.  All  Ciises 
of  circumstanlial  evidence  may  be  more  or  less  williin  this  class.  Aiul  it  is  obvious  that  the  case 
put  in  the  text  belongs  to  that  division  upon  which  Mr.  Clirisiian  has  made  the  following  remark : 

"Tliis  can  scarcely  be  correct:  I  should  conceive  that  proof  may  be  admitted  to  repel  all  pre- 
sumptions whatever,  and  even  if  a  receipt  should  be  produced  expressly  for  llierent  of  (he  year  1754, 
Slill  the  landlord  might  sl.cw  that  it  hail  been  obtained  by  mistake  or  fraud,  and  that  no  rent  had  been 
received  at  ilie  lime."  In  a  case  of  a  similar  nature  tried  before  Abboit,  C.  J.  at  Guildhall,  A.  D. 
J824,  the  landlord  adduced  evidence  to  shew  the  mitslake,  and  recovered. 

"It  is  difficult  to  Bay  what  ie  a  light  and  rash  presumption,  if  it  is  any  presumption  at  all.  .\ny  cir- 
ciimslance  may  be  proved  from  which  a  fair  iufcrence  can  be  drawn,  though  alone  il  would  be  too 
Blight  lo  support  the  verdict  of  the  jury,  yet  it  may  cormborate  other  testimonv,  and  a  number  of 
such  presiimplions  may  become  of  importance.  Possimt  diversa  genera  iti  conjimgi,  nt  qucjc  singula 
non  nocereril,  ea  wiiversa  la/iguam  gramio  reiim  opprimauC.     Matheus  de  Cr\m.— Chi  islian. 

t  Matter  appearing  at  the  trial  can  only  be  made  part  of  the  record  by  bill  of  cxceplions,  or  corti- 
firate  of  ihe  jiidije.  That  of  the  clerk  ihata  paper  was  read  in  evidence  does  not  make  it  part  of 
the  record.  4  Kan.  IfK.  Depositions  put  into  ihe  record  are  not  to  be  presumed  to  have  been  read 
uiilesj  It  PO  appear?  by  bill  of  excepiioni,  or  a  rertificaie  of  lh«  judge  upon  the  record.  Bowyor  v$. 
Chwnut,  3  Leigh.    6ee  Hale'ij  index,  (ilk  forlhconiins  bonds. 


CHAP.  17.]  BILLS  OF  EXCEPTION.  293 

judgment  of  the  court  being  all  reduced  to  writing,  any  error  which  may 
have  been  committed  in  them  may  of  course  be  detected.  But  there  is 
much  that  takes  place  on  the  trial  which  may  be  injurious  to  the  party,  and 
■which  would  not  appear  in  the  record  unless  some  provision  of  the  law  re- 
quired it.  Thus  if  the  judge  of  the  inferior  court  permitted  the  introduc- 
tion of  improper  evidence,  or  gave  the  jury  incorrect  instructions  as  to  the 
law,  the  evil  would  be  without  redress,  but  for  the  remedy  afi'orded  by  a  bill 
of  exceptions.  This  is  in  fact  nothing  but  a  certificate  of  the  judge  that 
certain  things  were  permitted,  or  opinions  given,  or  instructions  refused, 
upon  the  trial  of  the  cause,  by  which  the  ])arty  considered  himself  ag- 
grieved, for  which  reason  he  excepted  (or  objected)  and  prayed  his  excep- 
tions to  be  signed,  sealed,  and  enrolled,  in  pinsuance  of  which  prayer  they 
were  signed,  sealed,  and  enrolled  accordingly  ;  i.  e.  ordered  to  be  made  a 
part  of  the  record.  Thus  the  appellate  court  sees  what  took  place  on  the 
trial,  and  if  there  was  error  corrects  it  accordingly. 

Where  a  party  excepts  to  the  opinion  of  the  court,  the  bill  of  exceptions 
is  usually  prepared  and  tendered  by  the  counsel.  Some  nicety  is  required 
herein,  and  practice  alone  can  enable  him  to  acquire  the  necessary  dexte- 
rity in  drawing  these  instruments.  A  k\v  principles  ought  to  be  particular- 
ly attended  to. 

1.  As  courts  set  to  decide  causes  and  not  merely  to  moot  points  of  law, 
no  court  is  bound  to  give  opinions  or  instructions  upon  general  and  abstract 
propositions.  It  is  therefore  essential,  in  drawing  a  bill  of  exceptions,  that 
it  should  shew  that  the  matter  of  exceptions  was  material,  and  connected 
with  the  cause.  1  Cranch,  309.  2  H.  &  M.  S63.  4  H.  &  M.  82.  3  Mun. 
191.     4  Ran.  600.     5  Ran.  31. 

2.  As  the  decision  of  the  court  below  is  presumed  to  be  correct  unless 
the  contrary  appears,  the  bill  of  exceptions  should  omit  nothing  which  is 
necessary  to  show  conclusively  that  it  has  erred.*  See  1  Call,  28.  4  Ran. 
317.  Hence  in  all  motions  the  facts  must  be  fully  spread  upon  the  bill  of 
exceptions,  if  the  party  excepts  to  the  opinion  of  the  court  upon  the 
merits. 

3.  The  facts  of  the  case  on  which  the  exception  is  founded  should  be  ful- 
ly and  clearly  stated;  for  if  the  case  be  so  imperfectly  stated  as  that  the  ap- 
pellate court  cannot  see  how  it  should  be  decided,  the  judgment  will  be  re- 
versed and  a  new  trial  awarded  ;  1  Call,  105,  215.  2  Mun.  254.  4  Mun. 
373.  1  Leigh,  483.  3  Ran.  106.  2  Leigh,  321  ;  and  this  upon  the  same 
principle  that  a  repleader  is  awarded,  where  a  verdict  has  been  found,  upon 
an  immaterial  issue,  or  a  venire  de  novo  directed  upon  an  imperfect  special 
verdict.  And  although  the  imperfect  bill  of  exceptions  be  tendered  by  the 
party  who  failed  upon  the  trial  and  who  appeals,  yet  will  judgment  of  re- 
versal be  rendered ;  3  Call,  194  ;  so  that  it  is  the  interest  of  the  successful 
party,  as  well  as  of  him  who  excepts,  to  see  that  it  does  not  state  the  facts 
imperfectly. 

4.  The  court  not  being  bound  to  instruct  the  jury  on  the  truth  of  the  tes- 
timony, since  that  involves  the  question  of  the  credibility  of  the  witnesses, 
upon  which  it  is  the  exclusive  province  of  the  jury  to  decide,  a  bill  of  ex- 
ceptions should  never  be  drawn  in  terms  which  would  seem  to  imply  that 

^n  instruction  had  been  asked  as  to  the  weight  of  evidence.  It  should  be 
drawn  hypothetically,  "if  the  jury  believe  that  such  facts  are  proved,  then 
that  the  law  is,"  &c. ;  thus  leaving  the  matter  of  fact  to  the  proper  tribunal 
for  its  decision.  See  1  Wash.  203.  5  Mun.  199.  4  Cranch,  71.  See  4 
Ran.  256. 

*A  defective  bill  of  exceptions  cannot  be  aided  by  another  bill  of  exceptiona  filed  in  th«  cauw. 
Crawford  vs.  J  arret,  2  Leigh. 


294  DEMURRER  TO  EVIDENCE.  [  book  3. 

5.  The  bill  cf  exceptions  should  be  drawn  and  tendered  before  the  jury 
retire  from  the  bar,  though  it  may  be  drawn  up  more  formally  afterwards. 
1  Salkeld,  [238.]  Controversy  and  uncertainty  as  to  what  actually  occur- 
red is  thus  avoided. 

6.  Where  the  exception  is  taken  to  the  opinion  of  the  court  refusing  a 
new  trial,  which  was  moved  for  on  the  ground  that  the  verdict  was  against 
evidence,  the  facts  appearing  to  the  court  to  be  proved,  and  not  the  evidence 
of  those  facts,  should  be  stated.  6  Mun.  131.  6  Mun.  18.  1  Leigh,  287, 
340.  2  Leigh,  337.  3  Leigh,  196.  And  this  upon  the  presumption  ihat 
the  court  which  hears  the  trial  of  the  cause  and  the  examination  of  the 
witnesses,  is  best  qualified  to  pronounce  what  facts  the  evidence  establishes. 
It  should  however  appear  upon  the  bill  of  exceptions  that  the  facts  stated 
were  all  that  were  proved  in  the  cause. 

7.  Where  the  exception  is  upon  the  ground  that  the  court  rejected  testi- 
mony which  was  offered,  it  is  sufficient  that  the  bill  should  state  that  the 
testimony  teas  offered  ;  but  where  the  opinion  of  the  court  is  asked  upon 
.facts  given  in  the  cause,  it  should  be  stated  that  the  party  gave  in  evidence, 
&.C.,  not  merely  that  he  offered  to  give  such  evidence,  &,c. 

8.  A  bill  of  exceptions  ought  to  be  sealed  by  a  majority  of  the  court  at 
least.  3  H.  St  M.  219,  224.  In  the  county  courts,  the  same  court  that 
;tries  the  cause  ought  to  sign  and  seal  the  exceptions. 

9.  It  is  important  to  understand  in  what  cases  the  bill  of  exceptions  is 
rthe  proper  remedy.  If  the  party  deems  the  evidence  incompetent  or  im- 
jDroper,  he  excepts  to  its  admission  ; — but  if  he  believes  it  inadequate  to 
-make  out  his  adversary's  case,  he  may  either  demur  to  it  as  insufficient,  or 
'move  the  court  to  instruct  the  jury,  and  except  to  its  opinion  if  it  refuses  to 
.instruct,  (2  Wash.  255.  4  Cr.  71,)  or  gives  an  improper  instruction  ;  or 
he  may  waive  those  remedies,  and  go  on  to  trial  before  the  jury. 

10.  In  like  manner,  where  the  declaration  is  defective,  the  proper  man- 
ner is  to  demur  to  it,  or  to  move  in  arrest  of  judgment.  He  cannot  except 
to  the  introduction  of  evidence  which  is  applicable  to  the  declaration,  how- 
ever erroneous  the  declaration  may  be  in  the  matter  to  which  the  evidence 
applies.     2  Call,  530.     4  Mun.  444.     G  Mun.  271. 

11.  A  bill  of  exceptions  can  never  have  the  effect  of  a  demurrer  to  evi- 
dence.     1  Wash.  361. 

12.  Lastly:  It  is  said  in  one  book  that  a  demurrer  to  evidence  is  a  waiv- 
er of  a  bill  of  exceptions  ;  1  H.  &  M.  01 ;  but  this  being  the  dictum  of  a 
single  judge,  cannoi,  I  conceive,  establish  the  position  as  law.  There 
seems  to  me  no  assignable  reason  why  the  demurrer  should  be  deemed  a 
waiver  of  the  exception,  more  than  the  proceeding  with  the  trial  before 
the  jury.  In  both  cases  the  party  takes  two  chances  of  success.  Nor  does 
it  appear  unreasonable  that  the  demurrant  should  deny  the  weight  of  the 
evidence,  after  he  had  objected  to  its  admissibility.  If  it  be  either  incom- 
petent or  insufficient,  it  is  unjust  that  he  should  be  charged.  It  is  there- 
fore right  that  he  should  be  permitted  to  contest  it  in  both  aspects,  and  not 
reasonable  to  presume  that  he  waives  the  one  because  he  resorts  to  the 
other. 

When  a  cause  is  carried  to  a  superior  court  upon  a  bill  of  exceptions,  it 
is  our  practice  to  look  into  the  whole  record,  and  if  there  be  error,  to  re-^ 
verse  tlie  judgment  for  that  error,  though  the  court  may  not  have  erred  in 
the  matter  excepted  to.     4  H.  &  M.  200.     See  1  Call,  257. 

It  appears  to  be  an  unsettled  question  whether  the  court  of  appeals  has 
the  power  of  coercing  a  judge  of  an  inferior  court  to  seal  and  allow  a  bill  of 
exceptions  regularly  tendered  and  containing  the  truth  of  the  case.  2  Mun. 
478.  In  England  a  "compulsory  writ"  lies  against  the  justices,  as  has  been 
said  before  ;  and  this,  it  seems,  issues  cut  of  chancery,  and  is  awarded  by 


CHAP.  17]  DEMURRER  TO  EVIDENCE.  295 

the  chancellor  upon  petition.  See  1  Sch.  &  Lef.  75,  79-  Our  law  has  no 
such  provision,  but  merely  commands  that  the  judges  shall  seal  the  bill  if 
tendered.      Quare,  however,  if  a  mandamus  would  not  lie. 

As  to  billsof  exceptions  see  Tidd's  Practice,  785,  Sec.  1  Leigh,  86, 216, 
287,  340,  483, 598. 

A  demurrer  to  evidence,  instead  of  being  carried  like  a  bill  of  exceptions 
at  once  before  a  superior  court,  is  always  in  the  first  instance  decided  by 
the  court  in  which  the  suit  is  tried.  "  This  happens  where  a  record  or 
other  matter  is  produced  in  evidence,  concerning  the  legal  consetjuences  of 
which  there  arises  a  doubt  in  law  :  in  which  case  the  adverse  party  may,  if 
he  pleases,  demur  to  the  whole  evidence;  which  admits  the  truth  (>f  every 
fact  that  has  been  alleged,  but  denies  the  sufficiency  of  them  all,  in  point 
of  law,  to  maintain  or  overthrow  the  issue  :  which  draws  the  question  of 
law  from  the  cognizance  of  the  jury,  to  be  decided  (as  it  ought)  by  the 
court." 

In  the  distribution  of  the  duties  of  courts  and  juries,  it  has  been  firmly 
established  that  it  is  the  province  of  the  court  to  pronounce  upon  matters 
of  law,  and  of  the  jury  to  decide  upon  questions  of  fact.  "Ad  (jiicEstiones 
facti  respondent  juratores.''  When  the  parties,  however,  go  to  trial  of  the 
matter  in  dispute  between  them,  questions  of  law  and  fact  are  very  often: 
mingled  together.  Thus  upon  the  trial  of  a  plea  to  an  action  upon  a  bondi 
that  it  was  delivered  as  an  escrow,  if  a  witness  deposes  that  he  saw  the  de- 
fendant deliver  the  bond  to  the  plaintiff  himself,  to  have  the  effect  of  a  bond, 
upon  a  certain  condition  being  performed,  two  questions  are  presented; 
first,  the  question  of  fact,  "  whether  the  fact  testified  by  the  witness  is  true:" 
second,  the  question  of  law,  "  whether  such  a  delivery  was  a  delivery  of  the 
bond  as  an  escrow."  If  then  the  plaintiff  fears  that  the  jury  may  mistake 
the  law  of  the  case,  he  may  move  the  court  to  instruct  the  jury  that  although 
they  should  believe  the  witness,  the  fact  proved  by  him  did  not  amount  to  a 
delivery  as  an  escrow,  but  was  an  absolute  delivery,  as  it  was  made  to  him- 
self and  not  to  a  third  person;  and  if  the  court  refuses  so  to  instruct  the 
jury,  or  gives  the  contrary  instruction,  the  plaintiff  may  except  to  the  opin- 
ion, and  file  his  bill  of  exceptions  ;  for  he  has  a  right  to  the  opinion  of  the 
court  upon  the  matter  of  law  which  it  is  the  peculiar  province  of  the  court 
to  decide.  So  the  defendant,  on  his  part,  may  demand  the  instruction  of 
the  court  that  the  facts  proved  only  establish  a  delivery  of  the  bond  as  an 
escrow,  and  except  if  the  instruction  is  refused. 

But  the  law  has  devised  other  means  for  withdrawing  the  question  of  law 
from  the  jury,  who  in  complicated  cases  are  sometimes  embarrassed,  and 
misapply  the  instruction  of  the  court,  however  plainly  it  may  be  given. 
One  of  these  modes  is  a  demurrer  to  evidence.  See  Doug.  114.  This  is 
strongly  analagous  to  a  demurrer  in  pleading.  In  the  latter,  the  party  de- 
murring admits,  as  we  have  seen,  the  facts  alleged  by  his  adversary.  In 
the  former,  he  admits  every  fact  and  conclusion  which  the  testimony  in 
the  cause  may  conduce  to  prove  on  the  pari  of  his  adversary.  2"  Call,  588. 
The  reason  of  this  is  not  only  that  upon  principles  of  fair  argument  the 
party  who  contests  the  law  of  the  case,  or  the  weight  of  the  evidence, 
must  of  course  admit  its  truth,  but  also  that  by  the  dumurrer  he  withdraws 
from  the  jury  the  trial  of  the  facts,  which  it  is  their  province  to  determine. 
His  adversary  then  having  a  right  to  the  trial  of  the  facts  by  the  jury,  the 
law  requires  the  demurrant  to  admit  every  fact  that  may  fairly  be  inferred 
from  the  evidence,  as  he  does  not  think  proper  to  suffer  the  cause  to  go 
before  the  jury  for  their  decision. 

In  a  demurrer  to  evidence,  the  party  demurring  states  what  has  been 
proved  in  the  cause,  and  concludes  with  alleging  that  it  is  not  good  and 
sufficient  ugiter  to  maintain  the  issue  joined  on  the  part  of  his  adversary,. 


296  DEMURRER  TO  EVIDENCE.  [book  3. 

&c.,  wherefore  he  demurs  thereto  in  law,  and  for  want  of  sufficient  matter 
in  that  behalf  he  prays  judgment,  &,c.  The  other  party  then  joins  in  de- 
murrer, alleging  that  the  matter  shewn  in  evidence  is  good  and  sufficient  to 
maintain  the  issue  on  his  part,  8cc. ;  and  thereupon,  the  jury  find  a  verdict 
aorainst  the  demurrant,  subject  to  the  opinion  of  tlic  court  upon  the  demur- 
rer to  evidence  filed  in  the  cause.  See  the  form  of  the  demurrer.  Bull.  N. 
P.  31-1.  It  there  appears  that  in  England  the  jury  is  discharged  when  the 
demurrer  to  evidence  is  joined.  This  is  by  no  means  universally  the  case : 
for  where  the  defendant  demurs,  tiie  damages  may  be  assessed  conditional- 
ly. The  most  usual  course,  however,  in  England,  where  there  is  a  demur- 
rer to  evidence,  is  to  discharge  the  jury  without  farther  inquiry  ;  and  if 
judgment  is  afterwards  rendered  for  the  plaintiflT  on  the  demurrer,  a  writ  of 
inquiry  is  then  awarded.  Tidd's  Practice,  (r23,  795,  916,  The  other  prac- 
tice is  most  usual  with  us,  though  cases  may  occur  in  which  it  would  be 
inconvenient.  In  such  cases  I  have  known  the  English  practice  pursued. 
An  unconditional  verdict  is,  however,  not  erroneous,  provided  the  demur- 
rer be  afterwards  determined  by  the  court.     1  H.  &  M.  54. 

The  demurrer  to  evidence  is  not  in  all  cases  proper,  and  there  seems  to 
be  some  difficulty  in  drawing  the  precise  line  between  those  cases  in  which 
it  is  admissible,  and  those  in  which  it  is  not  so.  It  seems  to  be  agreed  that 
if  the  evidence  offered  consist  only  of  a  record,  or  other  matter  in  writing, 
the  adverse  party  may  insist  on  demurring  to  the  evidence,  and  the  party 
otfering  it  must  either  join  in  demurrer  or  waive  the  evidence.  And  the 
reason  is,  that  there  cannot  be  any  variance  of  matter  in  writing.  So  where 
the  evidence  is  by  parol,  it  has  been  said  that  if  it  be  certain  and  determi- 
nate, the  party  may  demur,  and  oblige  his  adversary  to  join  in  demurrer. 
Where,  however,  it  is  loose,  indeterminate,  and  circumstantial,  it  is  other- 
wise. In  such  cases,  the  party  offering  the  evidence  will  not  be  compel- 
led to  join  in  demurrer,  unless,  (where  the  testimony  is  loose  and  indeter- 
minate,) the  demurrant  admits  the  evidence  of  the  fact,  or  where  it  is  cir- 
cumstantial, unless  he  distinctly  admits  upon  the  record  every  fact  and  eve- 
ry conclusion  which  the  evidence  conduces  to  prove.  He  may,  however, 
join  in  the  demurrer,  and  then  every  fact  is  to  be  considered  as  admitted 
wliich  the  jury  could  infer  in  his  favor  from  the  evidence  demurred  to.  2 
H,  B.  167.  Tidd,  793,  794.  These  doctrines  are  cited  with  seeming  ap- 
probation by  Coalter  J.  6  Mun.  '3'26.  They  have  not,  however,  as  yet 
been  adopted  in  extenso  in  our  courts;  yet  the  principle  has  been  affirmed 
that  the  party  offering  the  evidence  shall  not  be  compelled  to  join  in  de- 
murrer where  the  evidence  consists  of  parol  testimony  that  is  loose,  inde- 
terminate and  circumstantial,  unless  he  will  distinctly  admit  every  fact  and 
conclusion  which  such  evidence  or  circumstances  conduce  to  prove  :  per 
Roane  J,  2  Call,  588,  589,  7  Cranch,  508,  In  like  manner,  it  is  said 
that  the  demurrant  cannot  compel  his  adversary  to  join  where  he  offers  con- 
tradictory evidence,  or  attempts  to  establish  "  inconsistent  propositions," 
and  thus,  so  far  from  admitting,  in  fact  denies  the  truth  of  that  evidence 
which  his  opponent  has  offered.  7  Cranch,  368,  I  Mun,  22,  37,  It  must 
be  confessed,  however,  that  the  practice  of  such  distinct  admission  upon 
tlie  record  has  not  obtained  among  us,  and  the  ordinary  course  is  to  con- 
sider that  as  the  effect  and  construction  of  the  demurrer  without  any  distinct 
admission.     See  1  Mun.  29, 

If  the  evidence  set  forth  in  the  demurrer  tendered  by  the  defendant,  shews 
that  the  plaintiff  ouglit  to  recover,  the  appellate  court  ought  not  to  reverse 
the  judgment  of  the  court  below,  because  it  refused  to  compel  the  plaintiff 
to  join  in  demurrer ; — a  step  which  always  tends  to  delay  him,  in  the  reco- 
very of  hia  demand.     4  Ran.  352. 


CHAP.  17.]  DEMURRER  TO  EVIDENCE.  297 

In  every  demurrer  to  evidence,  the  evidence  on  bofli  sides  is,  by  the  well 
established  practice  of  our  courts,  required  to  be  inserted.  2  Call,  555, 
574.  4  Ran.  400.  5  Ran.  1.  The  party  who  offers  it,  alleges  that  the 
evidence  thus  exhibited  is  not  good  and  sufficient  in  law  to  support  the  is- 
sue joined  on  the  part  of  his  adversary,  who  on  his  part  joins  in  the  de- 
murrer if  he  pleases,  or  is  ruled  to  do  so,  by  averring  that  it  is  good  and  suf- 
ficient in  law  to  maintain  the  issue  joined  ou  his  part,  or  in  other  words 
that  it  is  sufficient  to  support  his  action  or  delence,  as  the  case  may  be. 

The  party  offering  the  evidence,  however,  may  waive  an  objection  which 
he  might  justly  urge  to  being  compelled  to  join  in  demurrer.  And  when  he 
joins  the  demurrer,  every  fact  is  to  be  considered  as  distinctly  admitted 
which  the  evidence  would  conduce  to  prove  in  his  favour  ;  Tidd,  794;  or, 
as  it  is  elsewhere  expressed,  the  court  will  presume  in  favour  of  the  party 
offering  the  evidence,  any  and  every  fact  which  the  jury  might  have  inferred 
from  the  testimony  in  question.  But  those  conclusions  must  be  such  as 
would  result  from  a  just  and  reasonable  construction,  and  not  from  arbitra- 
ry inferences.     2  Wash.  203.     1  John.  241.     4  Cranch,  219.     5  Ran.  1. 

Thus  far  the  doctrine  is  intelligible  enough,  in  those  cases  where  there  is 
no  contradictory  testimony,  and  a  demurrer  is  joined  between  the  parties. 
But  where  there  is  contradictory  testimony,  and  the  demurrer  is  joined, 
some  difficulty  arises  from  the  decision  that  all  the  testimony  on  both  sides 
ought  to  be  inserted.  2  Call,  555,  574.  The  difficulty  may  perhaps  be 
solved  by  the  very  recent  decision  in  Green  vs.  Judith,  5  Ran.  1.  In  this 
case  the  court  of  appeals  not  only  reiterate  the  position  that  the  evidence 
on  both  sides  should  be  inserted  in  the  demurrer,  but  they  say  that  the  de- 
murrant must  be  considered  as  admitting  all  that  can  reasonably  be  inferred 
by  a  jury  from  the  evidence  given  by  the  other  party  ;  and  as  waiving  all 
the  evidence  on  his  part  which  contradicts  that  offered  by  his  adversary,  or 
the  credit  of  which  is  impeached  ;  and  as  waiving  also  all  inferences  from 
his  own  evidence,  which  do  not  necessarily  flow  from  it.  See  .3  Leigh,  147. 
Hence  it  would  seem  that  the  party  demurring  may  have  the  benefit  of  his 
testimony,  if  it  be  clear  and  uncontroverted  ;  and  as  the  demurrant  may 
also  choose  to  rely  on  it,  there  seems  to  be  good  reason  for  requiring  the 
insertion  of  the  whole,  subject  to  the  qualifications  imposed  by  the  rule  or 
principle  first  quoted. 

If  a  demurrer  to  evidence  be  tendered  in  a  clear  case,  the  court  may  for 
that  cause  refuse  to  compel  the  other  party  to  join  in  it :  1  Wash.  220.  5 
Mun.  24.  4  Cranch,  398:  for  it  is  a  matter  within  the  discretion  of  the  court, 
according  to  the  circumstances.  7  Cranch,  568.  1  Mun.  35,  36.  But  the 
appellate  tribunal  always  inquires  whether  that  discretion  has  been  soundly 
exercised  ;  and  if  not,  it  will  reverse  the  proceedings  accordingly.  1  Mun. 
36.  Hence,  whenever  a  party  tenders  a  demurrer  to  evidence,  and  the 
court  refuses  to  compel  the  other  party  to  join,  the  demurrant  may  except 
to  the  opinion  of  the  court,  and  spread  the  facts  in  that  way  upon  the  re- 
cord. 

It  is  obvious,  from  what  has  been  said,  that  a  demurrer  to  evidence  is  a 
proceeding  sometimes  very  hazardous  to  the  demurrant,  who,  as  we  have 
seen,  is  considered  as  admitting  the  truth  of  the  testimony  against  him,  and 
sometimes  as  waiving  his  own.  It  requires  also  much  circumspection  on 
the  part  of  his  adversary  :  for  as  the  demurrer  is  joined  on  the  sufficiency 
of  the  facts  proved  to  maintain  the  issue  on  his  part,  it  behoves  him  to  take 
care  that  nothing  is  omitted  which  is  necessary  to  make  out  his  case.  He 
must  therefore  have  a  clear  conception  of  the  essentials  necessary  to  sup- 
port his  right  of  action  or  his  defence,  and  should  be  very  wary  as  to  the 
language  introduced  into  the  demurrer.  For  if  he  fails  to  make  out  his 
case,  the  court  cannot  merely  for  that  cause  set  aside  the  demurrer  and 
VOL.  2—38 


2^8  EVIDE^cr.  [book  3. 

grant  a  new  trial ;  for  if  it  does,  and  he  obtains  a  verdict  on  a  subsequent 
trial,  the  appellate  court  will  reverse  the  judgment  and  enter  it  for  the  de- 
murrant. 2  Call,  '241.  It  must  be  observed,  however,  that  the  whole  ope- 
ration of  conducting  a  demurrer  to  evidence  is,  and  ought  to  be,  under  the 
direction  and  control  of  the  court  before  which  the  trial  lakes  place  ;  2  H. 
B.  208  ;  and  notes  of  the  testimony  regularly  should  be  taken  under  its 
superintendence.  BuUer's  N.  P.  313.  5  Bac.  468.  And  if  through  mis- 
take or  other  causes  a  material  fact  is  omitted,  which  the  court  judicially 
knows  to  have  been  proved,  the  demurrer  ought  to  be  amended  for  the  sake 
of  justice,  and  because  the  error  is  in  part  that  of  the  court  which  super- 
intends the  trial,  and  whose  privilege  and  duty  it  is  always  to  correct  its  own 
errors.  G  Mun.  322.  I  presume,  also,  that  it  is  in  the  power  of  the  court 
at  any  time  before  judgment  to  grant  a  new  trial,  and  set  aside  the  verdict 
and  demurrer,  on  the  ground  of  surprise,  or  for  any  reason  which  would 
justify  the  award  of  a  new  trial  after  a  verdict  on  the  merits.  Though  it 
Iras  lately  been  decided  that  if  a  party  finds  out  after  a  demurrer  to  evidence 
that  he  ought  not  to  have  demurred,  but  should  have  left  his  cause  to  the 
jury,  the  court  ought  not  to  award  a  venire  de  novo.     5  Ran.  1. 

The  reason  of  demurring  to  evidence  is,  as  has  been  said,  to  afford  the 
party  a  mean  of  bringing  the  matter  of  law  before  the  court.  It  is  some- 
times the  most  convenient  form  in  which  this  can  be  done,  and  it  is  pecu- 
liarly necessary  where  there  js  reason  to  suppose  the  jury  may  refuse  to 
find  a  special  verdict.  This  they  have  the  power  of  doing,  though  they 
have  not  a  moral  right  in  a  civil  case  to  disobey  the  instructio»  of  the  court 
directing  them  to  find  specialty. 

On  the  trial  of  a  demurrer  to  evidence  no  objection  can  be  taken  to  the 
pleadings.  Doug.  218.  For  the  question  is  not  whether  the  pleadings  are 
good,  but  whether  the  evidence  maintains  and  supports  them  such  as  they 
are.  See  Tidd.  71)2.  But  after  the  court  has  pronounced  its  opinion  that 
the  evidence  is  sufficient  to  maintain  the  issue,  the  demurrant  may  then 
move  in  arrest  of  judgment.  For  the  opinion  pronounced  by  the  court 
places  the  cause  exactly  in  the  situation  in  which  it  would  have  been,  had 
there  been  an  unconditional  verdict.     See  Doug.  218,  224. 

"  As  to  such  evidence  as  the  jury  may  have  in  their  own  consciences,  by 
their  private  knowledge  of  facts,  it  was  an  ancient  doctrine,  that  this  had  as 
mucii  right  to  sway  their  judgment  as  the  written  or  parol  evidence  which 
is  delivered  in  court.  And  therefore,  it  hath  been  ofien  held,  that  though 
no  proofs  be  produced  on  cither  side,  yet  the  jury  might  bring  in  a  verdict. 
For  the  oath  of  the  jurors,  to  find  according  to  their  evidence,  was  con- 
strued to  be,  to  do  it  according  to  the  best  of  their  own  knowledge."  But 
this  doctrine  has  not  only  been  gradually  exploded  in  England,  but  is  repu- 
diated by  an  express  legislative  provision  with  us.  It  declares  that  jurors 
knowing  any  thing  relative  to  the  point  in  issue  shall  disclose  the  same  in 
open  court.  1  R.  C.  ch.  75,  §  14.  They  are  thereupon  sworn  to  give  evi- 
dence, and  are  examined  and  cross-examined  as  any  other  witness. 

It  has  been  already  remarked,  that  he  who  has  the  affirmative  in  issue,  is 
first  called  on  and  entitled  to  introduce  his  testimony.  Where  the  testimo- 
ny produced  is  a  witness,  he  first  makes  a  statement  of  his  knowledge  of 
the  matter  in  question,  and  is  then  asked  such  questions  by  the  counsel  of 
the  parly  calling  him,  as  may  be  calculated  to  elicit  some  fact  which  may 
liave  escaped  his  reeollcction  in  his  general  detail.  When  this  examina- 
tion is  finished  on  that  side,  the  i)arty  against  whom  he  is  introduced  is  en- 
tilled  to  cross-examine  him  ;  and  it  is  irregular  and  improper,  that  either 
party  should  interrupt  or  interlcrc  with  his  adversary,  while  he  is  engaged 
in  the  examination  ; — unlcs,  indeed,  some  objection  is  to  be  made,  which 
s-hould  then  be  regularly  brought  before  the  court  for  its  deci&ion,  in  order 


CHAI>.  17.]  VERDICT.  299 

to  avoid  the  confusion  and  indecorous  wrangling  which  inevitably  enaues 
from  a  contrary  course. 

The  jury,  after  the  evidence  and  arguments  are  closed,  unless  the  case 
be  very  clear,  withdraw  from  the  bar  to  consider  of  their  verdict.  In  Vir- 
ginia, the  judge  does  not  proceed  to  sum  up  the  evidence,  as  is  usual  in  Entr- 
land,  and  in  some  of  our  sister  states  ;  a  course  which  would  probably  be 
deemed  with  us  an  invasion  of  the  privileges  of  the  jury  trial.  In  order 
to  avoid  intemperance  and  causeless  delay,  the  jury  are  confined  to  a. sepa- 
rate room  or  apartment,  and  according  to  the  ancient  practice,  were  to  be 
kept  without  meat,  d^-ink,  fire  or  candle,  until  they  were  unanimously  agreed 
in  their  verdict;  for  unanimity  is  required  by  our  law.  And  even  now, 
though  pending  a  long  trial,  the  jury  may  be  adjourned,  and  may  even  se- 
parate in  civil  cases  before  they  retire  to  consult  of  their  verdict,  yet  after- 
wards they  cannot  unless  by  consent.  2  Bar.  &  Aid.  46-2.  And,  moreover, 
when  kept  together  by  the  officer  of  the  court,  though  by  the  permission  of 
the  judge  they  are  allowed  every  necessary  and  comfort,  yet  every  due  pre- 
caution is  taken  to  prevent  any  excess  or  improper  indulgence.  If,  indeed, 
the  jurors  eat  and  drank  at  the  charge  of  one  of  the  parties  only,  a  verdict 
in  his  favor  will  be  set  aside,  though  the  modern  cases  evince  greater  libe- 
rality, wliere  no  corruption  or  secret  tampering  appears.  4  H.  &  M.  1. 
So,  too,  conversations  with  either  party  in  relation  to  the  matter  in  issue, 
after  they  have  retired  from  the  bar,  or  receiving  fresh  evidence  in  pri- 
vate, or  casting  lots  for  whom  they  shall  find,  are  good  causes  for  vacating 
verdicts  ;  but  ascertaining  the  damages,  by  each  finding  an  amount  of  da- 
mages, and  then  adding  up  the  several  amounts  and  dividing  by  twelve, 
seems  not  to  be  so  considered,  (2  Dall.  55.  1  Mass.  Rep.  54.3.  Wilson's 
Bacon,)  provided  they  afterwards  agree  to  the  sum  thus  ascertained.  I 
Ran.  39. 

When  the  jurors  do  not  agree,  a  juror  is  sometimes  withdrawn  by  con- 
sent ;  otherwise  they  continue  impannelled  until  the  rising  of  the  court, 
and  are  then  discharged  ;  the  old  notion  of  carrying  them  about  in  a  cart 
having  been  long  since  exploded. 

"  When  they  are  all  unanimously  agreed,  the  jury  return  back  to  the  bar  ; 
and,  before  they  deliver  tlieir  verdict,  the  plaintiff  is  bound  to  appear  in 
-court,  by  himself,  attorney,  or  counsel,  in  order  to  answer  the  amercement; 
to  which  by  the  old  law  he  is  liable,  as  has  been  formerly  mentioned,  in 
case  he  I'ails  in  his  suit,  as  a  punishment  for  his  false  claim.  To  be  amerc- 
ed or  amercie,  is  to  be  at  the  king's  mercy  with  regard  to  the  fine  to  be  im- 
posed ;  in  miserioordia  domini  regis  pro  falso  clamore  suo.  The  amerce- 
ment is  disused,  but  the  form  still  continues  ;  and  if  the  plaintiff  does  not 
appear,  no  verdict  can  be  given,  but  the  plaintiff  is  said  to  be  non-suit,  non- 
sequitur  clamorem  suum.  Therefore,  it  is  usual  for  a  plaintiff,  when  he  or  his 
counsel  perceives  that  he  has  not  given  evidence  sufficient  to  maintain  his 
issue,  to  be  voluntarily  nonsuited,  or  withdraw  himself:  whereupon  the 
crier  is  ordered  to  call  the  plaintiff :  and  if  neither  he,  nor  any  body  for  him, 
appears,  he  is  nonsuited,  the  jurors  are  discharged,  the  action  is  at  an 
end,  and  the  defendant  shall  recover  his  costs.  The  reason  of  this  prac- 
tice is,  that  a  nonsuit  is  more  eligible  for  the  plaintiff,  than  a  verdict  against 
him  :  for  after  a  nonsuit,  which  is  only  a  default,  he  may  commence  the 
same  suit  again  for  the  same  cause  of  action ;  but  after  a  verdict  had,  and 
judgment  consequent  thereupon,  he  is  for  ever  barred  from  attacking  the 
defendant  upon  the  same  ground  of  complaint." 

And  by  our  law  it  is  expressly  provided,  that  the  plaintiff  shall  not  be 
permitted  to  suffer  a  nonsuit,  after  liie  jury  retire  from  the  bar.  1  R.  C.  ch. 
128,  §  95. 


300  VERDICT.  [book  3. 

"  A  verdict,  rcrediclum,  is  either  privy  or  puhlir.  A  privy  verdict  is 
when  the  judge  hath  left  (-r  adjourned  the  court  :  and  the  jury,  being 
agreed,  in  order  to  be  delivered  from  their  confinement,  obtain  leave  to  give 
their  verdict  privily  to  the  judge  out  of  court ;  which  privy  verdict  is  of  no 
force,  unless  afterwards  affirmed  by  a  public  verdict  given  openly  in  court; 
wherein  the  jury  may,  if  they  please,  vary  from  the  privy  verdict.  So  that 
the  privy  verdict  is  indeed  a  mere  nullity  ;  and  yet  it  is  a  dangerous  prac- 
tice, allowing  time  for  the  parties  to  tamper  with  the  jury,  and,  therefore, 
very  seldom  indulged  :  [nevertheless  it  has  been  decided  that  the  parties  to 
a  cause  may  agree  that  the  jury  may  render  a  privy  verdict  to  the  clerk  in 
the  office  :  1  Call,  24H  :  a  fortiori,  to  the  judge  at  his  chambers  :  and  this 
has  become  a  very  common  practice.]  But  the  only  effectual  and  legal 
verdict  is  the  public  verdict :  in  which  they  openly  declare  to  have  found 
the  issue  for  the  plaintiff,  or  for  the  defendant ;  and  if  for  the  plaintiff,  they 
assess  the  damages  also  sustained  by  the  plaintiff,  in  consequence  of  the 
injury  upon  which  the  action  is  brought. 

"Sometimes,  if  there  arises  in  the  case  any  difficult  matter  of  law,  the 
jury,  for  the  sake  of  better  information,  will  find  a  special  verdict;  which  is 
grounded  on  the  statute  of  Westm.  2,  13  Edw.  1  c.  30,  c.  30,  §  2.  And 
herein  they  state  the  naked  facts,  as  they  find  them  to  be  proved,  and  pray 
the  advice  of  the  court  thereon  :  concluding  conditionally,  that  if  upon  the 
whole  matter  the  court  should  be  of  opinion  that  the  plaintiff  had  cause  of 
action,  they  then  find  for  the  plaintiff;  if  otherwise,  then  for  the  defendant. 
This  is  entered  at  length  on  the  record  and  afterwards  argued  and  deter- 
mined by  ihe  court."  As  to  imperfect  special  verdict,  see  4  Ran.  504. 
2  Mason,  31. 

Another  method  of  finding  a  species  of  special  verdict,  is  when  the  jury 
find  a  verdict  generally  for  the  plaintiff,  but  subject  nevertheless  to  the 
opinion  of  the  judge,  on  a  special  case  stated  by  the  counsel  on  both  sides, 
setting  forth  the  facts  and  submitting  the  law  arising  upon  them  to  the  de- 
cision of  the  court.  Sometimes  the  counsel  on  both  sides  make  up  a  case 
agreed,  in  which  the  facts  agreed  upon  are  stated,  and  it  is  further  agreed 
that  judgment  for  the  one  or  other  party  shall  be  entered,  according  as  the 
court  may  be  of  opinion,  that  upon  the  whole  matter  the  law  of  the  case 
is  either  for  the  plaintiff  or  defendant.  But  in  the  two  former  cases,  the 
jury  may,  if  they  think  proper,  take  upon  themselves  to  determine,  at  their 
own  hazard,  the  complicated  question  of  fact  and  law;  and,  without  either 
special  verdict  or  special  case,  may  find  a  verdict  absolutely  either  for  the 
plaintiff  or  defendant;  yet  in  civil  cases  it  is  certainly  their  duty  to  find  a 
special  verdict  when  so  directed,  and  if  they  refuse,  the  court  would  assu- 
redly grant  a  new  trial,  which  is  the  modern  substitute  for  the  old  common 
law  attaint. 

When  the  jury  have  delivered  their  verdict,  and  it  is  duly  recorded,  they 
are  then  discharged,  and  thus  terminates  the  trial  by  jury. 

It  remains  for  me,  however,  to  subjoin  to  what  has  been  said  some 
notice  of  certain  provisions  of  our  law  in  relation  to  the  depositions  of  wit- 
nesses. 

Upon  turning  to  Mr.  Blackstone's  work,  the  student  will  perceive,  that 
after  passing  a  highly  wrought  culogium  upon  the  system  of  jury  trial  as  it 
at  present  exists  in  England,  he  frankly  concludes  by  pointing  out  some  of 
the  defects  which  attend  it.  Among  these,  is  the  want  of  compulsive  pow- 
er for  the  production  of  books  and  j)apers  in  the  hands  of  the  parties,  and 
of  a  provision  for  taking  the  depositions  of  witnesses  resident  abroad,  whose 
attendance  at  the  trial  cannot  for  that  reason  be  enforced.  For  the  first  of 
these  defects  our  statutes  have  indeed  afforded  no  remedy ;  though  the 
modern  practice  of  our  courts  has  in  some  measure  supplied  it.     For  where 


CHAP.  18.]  OP  JUDGMENT.  301 

one  party  is  in  possession  of  papers  or  any  species  of  written  evidence  ma- 
terial to  the  other,  if  notice  is  given  him  to  produce  them  at  the  trial,  upon 
his  refusal  copies  of  them  will  be  admitted  ;  or  if  no  copy  has  been  made, 
parol  evidence  of  their  contents  will  be  received.  The  court  and  jury  pre- 
sume in  favor  of  such  evidence  ;  because,  if  it  were  not  agreeable  to  the 
strict  truth,  it  would  be  corrected  by  the  production  of  the  originals.  2  T. 
R.  201.  If  it  appears  that  the  party  or  his  counsel  have  the  paper  in  their 
possession  in  court,  at  the  time  of  the  trial,  no  notice  is  necessary,  for  the 
object  of  the  notice  is  merely  to  warn  the  party  to  produce  the  paper,  if  he 
does  not  choose  to  admit  the  secondary  evidence.  Material  changes  have 
been  made  as  to  these  matters  by  the  judiciary  act  of  1830. 

But  in  relation  to  depositions  of  witnesses,  our  acts  of  assembly  have 
been  studiously  particular.  1  R.  C.  ch.  131.  Whether  a  witness  be  a 
judge,  or  other  officer  of  government,  whose  attendance  cannot  on  account 
of  his  official  duties  be  procured  ;  or  a  resident  beyond  the  sea,  or  without 
the  limits  of  the  commonwealth,  so  that  his  attendance  cannot  be  enforced, 
commissions  may  be  awarded  the  party  who  desires  the  benefit  of  his  evi- 
dence, for  the  purpose  of  taking  his  deposition  ;  which,  when  taken,  may 
be  read  as  evidence  in  the  cause,  provided  due  notice  of  the  time  and  place 
of  taking  it  has  been  given  to  the  adverse  party,  and  the  directions  of  the 
act  having  been  otherwise  duly  complied  with.  In  like  manner,  if  the  claim 
or  defence,  (as  the  case  may  be,)  or  a  material  part  thereof,  depends  in  the 
estimation  of  a  party  on  the  testimony  of  a  single  witness,  or  on  the  testi- 
mony of  a  witness  who  is  about  to  depart  the  country,  or  who  by  age,  sick- 
ness, or  otherwise,  may  be  unable  to  attend  the  trial,  upon  affidavit  thereof 
a  commission  may  be  awarded  the  party  to  take  the  deposition  of  such  wit- 
ness. But  in  these  last  mentioned  cases  the  depositions  are  taken  only  de 
bene  esse,  (as  it  is  called — a  phrase  defying  translation  into  English,)  and 
can  only  be  read  as  evidence  at  the  trial,  in  case  the  witness  should  be  un- 
able to  attend  ;  which  inability,  upon  offering  the  deposition  as  evidence, 
the  party  should  be  prepared  to  prove,  together  with  the  fact  that  he  has 
been  duly  summoned,  if  in  the  country,  or  his  deposition  will  be  rejected. 
It  would  be  unnecessarily  tedious  to  enter  into  a  detail  of  the  various  pro- 
visions of  this  act  of  assembly.  I  must  content  myself,  therefore,  with  re- 
ferring the  student  to  it,  and  recommending  a  diligent  examination  of  its 
several  clauses,  since  they  are  of  every  day's  occurrence  in  the  ordinary 
business  of  the  courts.      1.  R.  C.  ch.  131. 

We  shall  now  proceed  to  consider  the  proceedings  in  a  suit  at  law  sub- 
sequent to  the  argument  of  the  demurrer,  or  the  trial  of  the  issue. 


CHArTER  XVIII. 

OF  JUDGMENT  AND  ITS  INCIDENTS. 

"  In  the  present  chapter  we  are  to  consider  the  transactions  in  a  cause 
next  immediately  subsequent  to  arguing  the  demurrer,  or  trial  of  the  issue. 

"  If  the  issue  be  an  issue  of  fact ;  and,  upon  trial  by  any  of  the  methods 
mentioned  in  the  two  preceding  chapters,  it  be  found  for  either  the  plain- 
tiff or  defendant,  or  specially ;  or  if  the  plaintiff  makes  default,  or  is  non- 
suit; or  whatever,  in  short,  is  done  subsequent  to  the  joining  of  issue  and 
awarding  the  trial,  it  is  entered  on  recorc,  and  is  called  a.  postea.  The 
substance  of  which  is,  that  postea,  afterwards  the  said  plaintiff  and  defen- 
dant appeared  by  their  attorneys  at  the  place  of  trial  ;  and  a  jury,  being 
sworn,  found  such  a  verdict;  or,  that  the  plaintiff,  after  the  jury  sworn, 
made  default,  and  did  not  prosecute  his  suit ;  or,  as  the  case  may  happen. 


g02  NEW    TRIALS.  [  book  3. 

This  is  added  to  the  record  ;  and  tlie  history  of  the  cause,  from  the  time  it 
was  carried  out,  is  thus  continued  by  the  postea. 

"  Next  follows,  sixthly,  the  judgment  of  the  court  upon  what  has  pre- 
viously passed  ;  both  the  matter  of  law  and  matter  of  fact  being  now 
fully  weighed  and  adjusted.  Judgment  may,  however,  for  certain  causes, 
be  mspended  or  finally  arrested.  So  that  if  any  defect  of  justice  happened 
at  the  trial,  by  surprise,  inadvertence,  or  misconduct,  the  party  may  have 
relief,  by  obtaining  a  new  trial  ;  or  if,  notwithstanding  the  issue  of  fact  be 
■regularly  decided,  it  appears  that  the  complaint  was  either  not  actionable 
in^itself,  or  not  made  with  sufficient  precision  and  accuracy,  the  party  may 
supersede  it  by  arresting  or  staying  the  judgment. 

i.  "  Causes  of  suspending  the  judgment  by  granting  a  new  trial*  are  at 

r  *  As  to  new  trials  in  general,  see  Tidd,  8tli  od.  934  to  9t9.  When  there  are  two  contrary  verdicts, 
it  is  not  of  course,  l)ut  in  the  discretion  of  the  court,  to  grani  a  new  trial.    2  Bla.  K.  963.     In  an  in- 


grounds  lor  ."elting  .. -  -, „  =  . 

notice  of  trial,  (unless  the  defendant  appearand  make  defence.)  TjuI.  N.  P.  3-^V.  3  Price,  7-. 
Salk.  646.  2dly.  A  vari/ince  between  ihe  issue  deliv«red,  and  the  nisi  prius  record,  material  to  the 
point  in  issue.  Jjarnes,  464.  2  Stia.  1131 ;  and  see  8  'I'auiit.  634.  2  li.  &  A.  47-].  3rd ly.  Where 
the  jury  have  not  been  properly  returned,  4  T.  R.  473;  but  it  is  not  ground  for  a  new  trial,  that  the 
attorney  for  the  defendant  was  the  under-shtiriflT,  who  had  the  summoning  of  the  jury.  1  Smith  R. 
304.  4ihlv.  INlishehaviour  of  the  prevailing  party  to  {\ie  jury  or  witnesses,  7  Mod.  156;  distribution  of 
liandbillsin  court  on  the  day  of  trial,  and  shewn  to  the  jury,  reflecting  on  plaintiff's  character.  3 
Bro.  &Bing.  272.  Stlily.  Unavoidable  absence  of  like  attorneys,  3  Taunt.  434.  1  Price,  201 ;  or  wit- 
nesses, 2  Salk.  645.  6  Moil.  22.  1  Price,  1 ;  or  the  discovery  of  new  and  material  evidence  since 
the  trial,  2  Bla.  Rep.  955  :  or  where  upon  the  f  icts  an  inference  of  law  arises  on  a  statute,  of  wiiicli 
\ lie  parties  were  not  then  aware,  7  Taunt.  309:  In  all  these  latter  cases  the  court  will  sometimes, 
cjiosigli  rarely,  grant  a  new. trial.  6lkly.  If  the  witnesses,  on  whose  testimony  the  verdict  was  ob- 
tained, have  been  since  convicied  of  perjury  in  giving  their  evidence,  M.  22,  Geo.  3,  K.  B. ;  or  if 
prol)able  ground  be  laid  to  induce  llie  court  to  belreve  that  the  witnesses  ate  perjured,  they  will  stay 
the  proceedings  on  the  finding  of  a  bill  of  indictment  against  them  lor  perjury,  till  the  indictment  is) 
.tried,  ib.;  but  the  circumstance  of  an  indictment  for  perjury,  having  been  found  against  a  witness,  is 
no  ground  of  motion  for  new  trial.  4M.&.S.  140.  8  Taunt.  182.  7thly.  Misdirection  of  the  judge, 
4  M.  &  S.  140.  2  Price,  3.  2  Moore,  80.  8  Taunt.  182;  or  hisadmitting  or  receiving  evidence  con- 
trary to  law.  6  Mod.  242.  Gthly.  If  the  jury  find  their  verdict  without,  or  contrary  to  evidence,  2 
Hiirr.  936.  3  B.  &  A.  692 ;  but  it  is  not  usual  where  there  is  evidence  on  both  sides,  2  Sira.  1106.  1 
Wils.  22.  3  Taunt.  1.  2  IVice,  282,  unless  <lie  judge  declare  himself  dissatisfied  with  the  verdict- 
Say.  Pv,ep.  2C4;  see  3  Wils.  3;;.  Chilty  R.  271.  6  Price,  146,  9ihly.  The  misbehaviour  of  the  jury 
in  casting  lots  for  their  verdict,  2  Salk.  6l5.  Bui.  N.  P.  236  ;  but  imputed  partially  or  misbehaviour 
of  tlie  jury,  is  listened  to  with  great  caution  for  this  purpose.  See  2  B.  &  A.  462.  7  Price,  203.  8 
Tauni.  26.  3  Brud.  &  Bing.  272.  5  Burr.  2667.  2  T.  R.  281.  lOihly.  For  excessive  damages,  in- 
dicating passion  or  partiality  in  the  jury.  IStra.  692.  1  Burr.  609.  3  Wils.  18.  2  Bl.  Rep.  929. 
■Covt'p.  230.  5  T.  R.  257.  7  ib.  529.  11  East,  23.  It  is  not  usual  to  grant  a  new  trial  lorsmallnees 
of  damages,  2  Salk.  647.  2Stra.  910.  Doug.  509.  Barnes,  455,  6;  in  which  latter  cise  it  is  said, 
if  the  demand  is  certain,  as  on  a  promissory  note,  the  court  will  set  aside  a  verdict  for  too  small  dama- 
ges, but  not  where  the  damages  are  uncertain.  Lastly,  it  is  a  general  rule,  not  to  grant  a  new  trial, 
*»»:cept  for  the  misdirection  ol  the  judge,  4  T.  11.  753.  5  ib.  19.  6  Kast,  316.  1  Marsh. 555;  or  where 
a  point  has  been  saved  at  the  trial,  1  B.  &  P.  333,  in  a  penal.  2  Stra.  899.  10  East,  268.  4  M.  &,  S. 
3:5;).  2(;hitty  R.  273.  hard  or  trifling  action,  2  Salk.  6.33.  3  Burr.  1306;  and  an  action  is  considered 
trilling  in  this  respect,  when  the  sum  to  be  recovered  is  under  20/.,  5  Taunt.  537.  1  Chilli'  R.  265, 
unless  the  trial  is  to  settle  a  right  of  a  perinanent  naluie.  lb.  In  all  these  cases,  if  the  verdict  be 
agreeable  to  equity  and  justice,  the  court  will  not  grant  a  new  trial,  though  there  may  have  been  an 
error  in  the  admission  or  rejection  of  pvidfMice.  or  in  the  direction  ot  the  judge,  if  it  appear  to  the 
court  oil  the  whole  matter  disclosed  by  the  report  thai  the  verdict  ouglit  to  be  confirmed.     4  T.  R.  4(3o. 

A  new  trial  cannot  be  granted  in  civil  cases  at  the  instance  of  one  of  peveral  defendants,  12  Mod. 
275.  2Stia.  814,  nor  for  apnr/ only  o(  the  cause  of  action.  2  Burr.  1224.  3  Wils.  47.  But  there 
may  be  cases  in  which  the  new  trial  is  restricted  to  a  particular  part  ol  the  record,  as  if  the  judge 
give  lea\  e  to  move  on  one  part  or  point  only, on  a  stipulation  tliat  counsel  shall  not  move  for  any  thing 
else;  or  if  the  court  think  injustice  may  be  done  by  setting  the  wlioh;  matter  at  large  again,  they 
may  restrict  the  second  trial  to  certain  particular  points.    4  Taunt.  ■j'iG. 

In  criminal,  cases  no  new  trial  can  be  granted  where  the  defendant  has  been  acquitted.  6  East, 
315.  4  M.  &.  S.337.  1  B.  A.  64.  Where  several  defendants  are  tried  at  the  same  lime  for  a  misde- 
meanor, and  some  are  acquitted,  and  olheis  convicted,  the  court  may  grant  a  new  trial  to  those  con- 
victed, if  they  think  the  conviction  improper.    6  East,  619. 

In  civil  cases  a  motion  lor  a  new  trial  cannot  be  inad«  after  an  unsuccessful  motion  in  arrest  of 
judgment.  4  Bar.  &,  Crej.  IGO.  The  gi  anting  of  a  new  trial  is  either  willioul  or  upon  payment  of 
the  costs  of  ihe  former  Irial;  or  such  costs  are  directed  to  abide  the  event  of  the  suit.  Tlie  general 
rule  seems  to  be,  thai  if  the  new  trial  be  granted  for  the  misbehaviour  of  the  jury,  or  the  misdirec- 
tion of  the  judge,  the  costs  ^re.  not  required  to  be  paid  by  the  party  applying  for  a  new  Irial  ;  but 
where  the  mere  error  of  the  jury,  or  the  discovery  of  fresh  evidence  is  the  ground,  the  costs  must 
be  paid  by  the  party  moving  to  set  aside  the  Inrmcr  verdict.  See  Tidd,  8lli  ed.945.  Chitti/.  [Tho' 
much  of  the  foregoin.j  note  is  inapplicable  to  the  Btate  of  our  practice,  yet  I  have  thought  it  not  ad- 
visable to  deprive  the  Btudent  of  the  benefit  o|  ita  condensed  vi«w  of  ihe  cases  on  the  subject  of 
new  trials.    Editor.] 


CHAP.  18.]  NEW    TRIALS.  803 

present  wholly  extrinsic,  arising  from  matter  foreign  to,  or  dehors,  the  re- 
cord. Of  this  sort  are  any  flagrant  misbehaviour  of  the  party  prevailing 
towards  the  jury,  which  may  have  influenced  their  verdict;  or  any  gross 
misbehaviour  of  the  jury  among  themselves:  [as  separating  without  leave  : 
sed  vide  2  Barn.  &  Aid.  46-21.  Chitty's  Rep.  401.  Tidd,  [940.]  1 
Leigh,  455:]  as  also  if  it  appears  by  the  judge's  report,  certified  by  the 
court,  that  the  jury  have  brought  in  a  verdict  without  or  contrary  to  evi- 
dence, so  that  he  is  reasonably  dissatisfied  therewith:  or  if  they  have  given 
exorbitant  damages ;  or  if  the  judge  himself  has  misdirected  the  jury,  so 
that  they  found  an  unjustifiable  verdict:  for  these,  and  other  reasons  of  the 
like  kind,  it  is  the  practice  of  the  court  to  award  a  new,  or  secoud  trial. 
But  if  two  juries  agree  in  the  same  or  a  similar  verdict,  a  third  trial  is  sel- 
dom awarded  :  for  the  law  will  not  readily  suppose  that  the  vdrdict  of  any 
one  subsequent  jury  can  countervail  the  oaths  of  the  two  preceding  ones;" 
and  by  our  law  1  R.  C.  ch.  138,  §  97,  not  more  than  two  new  trials  can  be 
granted  to  same  party  in  any  case. 

"  The  exertion  of  these  superintendent  powers  of  the  king's  courts  in 
setting  aside  the  verdict  of  a  jury  and  granting  a  new  trial,  on  account  of 
misbehaviour  in  the  jurors,  is  of  a  date  extremely  ancient."  As  early  as  the 
reign  of  Charles  the  II.,  new  trials  were  granted  "  upon  affidavits;  and 
the  former  strictness  of  the  courts  of  law,  in  respect  of  new  trials,  liaving 
driven  many  parties  into  courts  of  equity  to  be  relieved  from  oppressive  ver- 
dicts, they  are  now  more  liberal  in  granting  them  :  the  maxim  at  present 
adopted  being  this,  that  (in  all  cases  of  moment)  where  justice  is  not  done 
upon  one  trial,  the  injured  party  is  entitled  to  another."  They  are  also 
the  substitute  for  the  old  common  law  remedy  of  attaint,  of  which  the 
student  will  find  an  account  in  Mr.  Blackstone  :  and  they  have  been  found 
in  practice  exceedingly  salutary  and  conducive  to  justice. 

"  If  every  verdict  was  final  in  the  first  instance,  it  would  tend  to  destroy 
this  valuable  method  of  trial,  and  would  drive  away  all  causes  of  conse- 
quence to  be  decided  according  to  the  forms  of  the  imperial  law  upon  de- 
positions in  writing  ;  which  might  be  reviewed  in  a  course  of  appeal.  Causes 
of  great  importance,  titles  to  land,  and  large  questions  of  commercial  pro- 
perty, come  often  to  be  tried  by  a  jury,  merely  upon  the  general  issue  : 
where  the  facts  are  complicated  and  intricate,  the  evidence  of  great  length 
and  variety,  and  sometimes  contradicting  each  other ;  and  where  the  na- 
ture of  the  dispute  very  frequently  introduces  nice  questions  and  subtilities 
of  law.  Either  party  may  be  surprised  by  a  piece  of  evidence,  which  (had 
he  known  of  its  production)  he  could  have  explained  or  answered  :  or  may 
be  puzzled  by  a  legal  doubt,  which  a  little  recollection  would  have  solved. 
In  the  hurry  of  a  trial  the  ablest  judge  may  mistake  the  law,  and  misdirect 
the  jury  :  he  may  not  be  able  so  to  state  and  range  the  evidence  as  to  lay 
it  clearly  before  them,  nor  to  take  off  the  artful  impressions  which  have 
been  made  on  their  minds  by  learned  and  experienced  advocates.  The  jury 
are  to  give  their  opinion  instanter  ;  that  is,  before  they  separate,  eat,  or 
drink.  And  under  these  circumstances  the  most  intelligent  and  best  in- 
tentioned  men  may  bring  in  a  verdict,  which  they  themselves  upon  cool  de- 
liberation would  wish  to  reverse. 
/y  "Next  to  doing  right,  the  great  object  in  the  administration  of  public 
justice  should  be  to  give  public  satisfaction.  If  the  verdict  be  liable  to  many 
objections  and  doubts  in  the  opinion  of  his  counsel,  or  even  in  the  opinion 
of  by-standers,  no  party  would  go  away  satisfied  unless  he  had  a  prospect 
of  reviewing  it.  Such  doubts  would  with  him  be  decisive:  he  would  ar- 
raign the  determination  as  manifestly  unjust ;  and  abhor  a  tribunal  which 
he  imagined  had  done  hi.oi  an  injury  without  a  possibility  of  redress. 


304  NEW    TRIALS.  [book  3. 

"Grantino"  a  new  trial,  under  proper  regulations,  cures  all  these  incon- 
veniences, and  at  the  same  time  preserves  entire  and  renders  perfect  that 
most  excellent  method  of  decision,  which  is  the  glory  of  the  English  law. 
A  new  trial  is  a  rehearing  of  the  cause  before  another  jury  ;  but  with  as  lit- 
tle prejudice  to  either  party,  as  if  it  had  never  been  heard  before.  No  ad- 
vantage is  taken  of  the  former  verdict  on  the  one  side,  or  the  rule  of  court 
for  awarding  such  second  trial  on  the  other  :  and  the  subsequent  verdict, 
though  contrary  to  the  first,  imports  no  tittle  of  blame  upon  the  former  ju- 
ry ;  who,  had  they  possessed  the  same  lights  and  advantages,  would  proba- 
ably  have  altered  their  own  opinion.  The  parties  come  better  informed, 
the  counsel  better  prepared,  the  law  is  more  fully  understood,  the  judge  is 
more  master  of  the  subject ;  and  nothing  is  now  tried  but  the  real  merits  of 
the  case.  •  • 

"  A  sufficient  ground  must,  however,  be  laid  before  the  court  to  satisfy 
them  that  it  is  necessary  to  justice  that  the  cause  should  be  farther  consi- 
dered. If  the  matter  be  such,  as  did  or  could  not  appear  to  the  judge  who 
presided  at  nisi  prius,  it  is  disclosed  to  the  court  by  affidavit  :  if  it  arises 
from  what  passed  at  the  trial,  it  is  taken  from  the  judge's  information  ;  who 
usually  makes  a  special  and  minute  report  of  the  evidence.  Counsel  are 
heard  on  both  sides  to  impeach  or  establish  the  verdict,  and  the  court  give 
their  reasons  at  large  why  a  new  examination  ought  or  ought  not  to  be  al- 
lowed. The  true  import  of  the  evidence  is  duly  weighed,  false  colours  are 
taken  off,  and  all  points  of  law  which  arose  at  the  trial  are  upon  full  deli- 
beration clearly  explained  and  settled. 

"  Nor  do  the  courts  lend  too  easy  an  ear  to  every  application  for  a  review 
of  the  former  verdict.  They  must  be  satisfied,  that  there  are  strong  proba- 
ble grounds  to  suppose  that  the  merits  have  not  been  fairly  and  fully  dis- 
cussed, and  that  the  decision  is  not  agreeable  to  the  justice  and  truth  of  the 
case.  A  new  trial  is  not  granted,  where  the  value  is  too  inconsiderable  to 
merit  a  second  examination.  It  is  not  granted  i-  on  nice  and  formal  ob- 
jections which  do  not  go  to  the  real  merits.  It  is  not  granted  in  cases  of 
strict  right  or  summum  jus,  where  the  rigorous  exaction  of  extreme  legal 
justice  is  hardly  reconcileable  to  conscience.  Nor  is  it  granted  where  the 
scales  of  evidence  hang  nearly  equal :  that  which  leans  against  the  former 
verdict,  ought  always  very  strongly  to  preponderate. 

"  In  granting  such  further  trial  (which  is  matter  of  sound  discretion)  the 
court  has  also  an  opportunity,  which  it  seldom  fails  to  improve,  of  supply- 
ing those  defects  in  this  mode  of  trial  which  were  stated  in  the  preceding 
chapter ;  by  laying  the  party  applying  under  all  such  equitable  terms,  as 
his  antagonist  shall  desire  and  mutually  offer  to  comply  with :  such  as  the 
discovery  of  some  facts  upon  oath  ;  the  admission  of  others,  not  intended 
to  be  litigated  ;  the  production  of  deeds,  books,  and  papers;  the  examina- 
tion of  witnesses,  infirm  or  going  beyond  sea  ;  and  the  like.  And  the  de- 
lay and  expense  of  this  proceeding  are  so  small  and  trifling,  that  it  seldom 
can  be  moved  for  to  gain  time  or  to  gratify  humor.  The  motion,  [usually 
made  at  the  same  time  at  which  the  trial  took  place,]  within  which  term  it 
is  usually  heard  and  decided.  And,  it  is  worthy  of  observation,  how  infinitely 
superior  to  all  others  the  trial  by  jury  approves  itself,  even  in  the  very  mode 
of  its  revision.  In  every  other  country  of  Europe,  and  in  those  of  our  own 
tribunals  which  conform  themselves  to  the  process  of  the  civil  law,  the  ])ar- 
ties  are  at  liberty  whenever  they  please  to  appeal  from  day  to  day,  and 
from  court  to  court,  upon  questions  merely  of  fact;  which  is  a  perpetual 
source  of  obstinate  chicane,  delay,"  and  expensive  litigation.  With  us  no 
new  trial  is  allowed,  unless  there  be  a  manifest  mistake,  and  the  subject- 
matter  be  worthy  of  interposition.     The  party  who  thinks  himself  aggriev- 


tHAP.  18.]  NEW    TRIALS*  305 

ed,  may  still,  if  he  pleases,  have  recourse  to  his  writ  of  attaint  after  judg- 
ment; in  the  course  of  the  trial  he  may  demur  to  the  evidence,  or  tender 
a  bill  of  exceptions.  And  if  the  first  is  totally  laid  aside,  and  the  other 
two  very  seldom  put  in  practice,  it  is  because  long  experience  has  shewn 
that  a  motion  for  a  second  trial  is  the  shortest,  cheapest,  and  most  effectual 
cure  for  all  imperfections  in  the  verdict ;  whether  they  arise  from  the  mis- 
takes of  the  parties  themselves,  of  their  counsel  or  attorneys,  or  even  of  the 
judge  or  jury." 

•  In  the  foregoing  pages,  I  have  laid  before  the  student  the  judicious  re- 
marks of  Mr.  Blackstone,  with  a  condensed  note  of  one  of  his  annotators, 
on  the  subject  of  new  trials.  I  was  unwilling  to  forego  the  benefit  to  be 
derived  from  them,  and  now  only  beg  leave  to  submit  to  his  consideration 
some  other  views  of  this  important  subject. 

We  have  seen,  that  in  England,  new  trials  may  be  granted  oti  the  ground 
of  a  misdirection  given  by  the  judge  to  the  jury  upon  the  trial  of  the  cause, 
not  less  than  for  other  reasons.  At  one  time,  indeed,  the  court  of  appeals 
of  Virginia  appears  to  have  been  of  a  different  opinion.  1  Wash.  5.  But 
in  a  much  more  recent  case,  (Gilmer,  41,)  the  principle  is  fully  recognizedj 
upon  the  obvious  reason,  that  though  the  judge  may  in  the  hurry  of  a  jury 
trial  have  given  an  instruction,  yet  upon  reflection  he  may  have  discovered 
his  error,  and  there  is  no  assignable  reason  why  he  should  not  be  permitted 
to  correct  it.  If,  indeed,  the  motion  for  a  new  trial  on  the  ground  of  mis- 
direction be  refused,  because  he  adheres  to  his  former  opinion,  then  the 
party  grieved  may  except  to  the  opinion,  thus  refusing  the  motion,  and  bring 
the  question  before  a  superior  tribunal.  • 

New  trials  may  in  numerous  instances  be  granted  for  the  misconduct  of 
the  jury.  Of  this  description  is  the  finding  a  verdict  against  the  instruction 
of  the  court  as  to  a  matter  of  law  ;  for  they  ought  to  respect  and  defer  to 
that  opinion,  as  it  is  the  peculiar  province  of  the  court  to  determine  what 
the  law  is.  So  if,  in  a  civil  case,  they  are  directed  to  find  a  special  verdict 
or  to  save  the  question  of  law,  and  they  nevertheless  find  a  general  verdict, 
thus  undertaking  to  decide  the  law  themselves,  though  instructed  to  submit 
it  to  the  proper  tribunal,  this  is  misconduct  which  will  be  remedied  by  a 
new  trial.  And,  in  like  manner,  in  the  various  cases  before  mentioned  of 
irregular  conduct  in  the  jurors,  a  new  trial  will  be  granted  and  the  vitiated 
verdict  will  be  set  aside. 

Applications  for  new  trials,  however,  are  most  usually  made  on  the  ground 
of  mistake  in  the  jury;  or  of  their  verdict  being  against  evidence ;  or  of 
the  damages  being  excessive,  or  inadequate ;  or  of  mistake  or  surprise  of 
the  party  upon  the  trial  ;  or  of  the  discovery  of  new  evidence.  In  refe- 
rence to  these  matters  I  deem  it  not  unimportant  to  lay  before  the  student 
some  of  the  principles  which  govern  courts  of  law  upon  such  applications', 
premising  only  that  a  motion  for  a  new  trial  ought  always  to  be  made  be- 
fore a  motion  in  arrest  of  judgment.  4  Barn.  &.  Cres.  160.  And  where  it 
is  grounded  on  the  allegation  that  the  verdict  is  contrary  to  evidence,  the 
application  must  always  be  made  to  the  same  court  which  tried  the  cause; 
since  judges  or  justices  who  did  not  hear  the  trial  cnnnot  be  supposed  com- 
petent to  pronounce  on  that  question.  Yet  this  ia  often  difficult  in  the 
county  courts,  as  the  justices  who  preside  in  the  trial  of  causes  are  conti- 
nually changing. 

•■*^  A  new  trial  on  the  ground  of  the  verdict's  being  contrary  to  evidence, 
ought  not  to  be  granted  in  a  doubtful  case,  merely  because  the  court  thought 
the  jury  would  have  given  a  different  verdict ;  since  that  would  be  to  as- 
sume the  province  of  the  jury,  who  are  the  proper  tribunal  for  trying  the 
fact.  3  Call,  309.  And  on  a  motion  for  a  new  trial,  on  the  ground  that 
the  verdict  is  contrary  to  evidence,  affidavits  or  other  testimony  not  used  at 
VOL.  2—39 


306  NEW  TRIALS.  [  BOOK  3. 

the  trial  cannot  be  introduced.  6  Mun.437.  Nor  ought  a  venire  de  novo 
to  be  o-ranted  at  a  term  subsequent  to  that  when  a  special  verdict  is  render- 
ed, on  the  affidavit  of  a  witness,  who  had  beerj  examined  before  the  jury, 
that  they  had  not  found  certain  facts  according  to  the  testimony  he  gave. 
2  H.  &  M.  318.  See  1  Sel.  Prac.  488.  To  permit  such  testimony  would 
be  to  encourage  tampering  with  witnesses.  A  like  consideration  forbids 
the  granting  new  trials,  generally  upon  affidavits  of  the  jurors  themselves, 
showing  that  they  had  been  guilty  of  misbehaviour,  or  had  been  mistaken, 
though  such  evidence  by  third  jiersons  would  be  sufficient ;  as  where  two, 
jurors  swore  they  were  influenced  by  information  given  in  their  jury  roora 
by  ene  of  their  body  who  iiad  not  been  sworn  as  a  witness.  1  H.  &  M. 
385.  1  T.  11.  11.  "l  Wasli.  79.  Tidd's  Prac.  816.  Yet  in  Cockran  vs. 
Street,  1  W.  79,  where  by  the  affidavits  of  a  majority  cf  the  jury  a  mistake 
Avas  established,  and  it  appeared  that  the  verdict  had  been  rendered  under 
the  mistaken  idea  that  the  opinion  of  the  majority  was  to  prevail,  a  new 
trial  was  granted.     See  ai.so  the  cases  cited  1  Sellon's  Prac.  488. 

New  trials  are  granted  with  more  hesitation  to  the  plaintiff  in  ejectment 
than  to  the  defendant  ;  because,  if  the  new  trial  be  refused  to  the  latter,  the 
possession  is  changed.  He  is  turned  out  and  must  bring  an  ejectment  to 
get  back  possession.  The  plaintiff  does  not  sustain  like  inconvenience, 
ujiless,  indeed,  the  act  of  limitation  might  bar  a  second  ejectment,  which 
doubtless  would  weigh  in  inducing  a  court  to  grant  it.     See  3  Ran.  477. 

The  court  may  grant  a  new  trial,  as  we  here  see,  if  the  damages  are 
deemed  excessive  ;  but  the  excess,  in  cases  of  tort,  must  be  flagrant,  so  as 
to  afford  evidence  of  passion  or  prejudice  on  the  part  of  the  jury.  And 
where  a  new  trial  is  asked  on  account  of  excessive  damages,  if  the  plaintiff 
will  release  the  supposed  excess,  the  new  trial  is  refused,  (i  Mun.  271.  if 
the  jury  find  more  damages  than  are  laid  in  the  writ,  a  new  trial  must  be 
granted,  unless  the  plaintiff  will  release  the  excess.  This,  however,  he 
may  do,  and  then  the  judgment  may  be  correctly  entered  for  so  much  as 
are  laid.  5  Mun.  494.  A  new  trial  could  not  formerly  be  granted  where 
the  damages  in  actions  of  tort  were  inadequate.  But  now  in  all  cases  a 
new  trial  may  be  granted,  as  well  where  the  damages  are  too  small,  as  where 
they  are  excessive.  1  11.  C.  ch.  128,  §  96.  The  profession  seems  to  have 
been  inclininij  to  this  opinion  even  before  this  legislative  provision.  See  5 
Mun.  13.  .  ^  ^ 

It  is  a  general  principle  that  the  discovery  of  other  evidence  is  not  a  suf- 
ficient ground  of  new  trial,  if  the  evidence  might  have  been  submitted  to 
the  jury  by  the  exercise  of  due  diligence.  4  H.  &  M.  369.  6  John.  C.  R. 
479.  2T.  R.  113.  1  Wils.  98.  But  as  the  application  for  a  new  trial  is 
always  to  the  discretion  of  the  court,  if  it  happens  that  the  party  has  been 
surprised  upon  the  trial,  or  that  he  has  since  the  trial  discovered  new  mat- 
ter of  dej'ence,  or  new  evidence,  of  which  lie  could  not  by  the  exercise  of 
due  diligence  have  availed  himself,  a  new  trial  will  be  granted.  As  when 
important  facts  might  have  been  disclosed,  had  all  the  witnesses  to  a  release 
relied  on  by  the  defendant  been  examined,  a  new  trial  was  granted.  3  Wils. 
38. 

It  is  in  the  nature  of  the  thing  impracticable  to  draw  the  precise  line 
which  defines  the  boundary  between  cases  in  which  new  trials  will  or  will 
not  be  granted.     Certain  g'cnera/ rules  can  only  be  laid  down. 

Of  these  the  first  and  principal  is,  that  the  granting  of  a  new  trial  is  al- 
ways matter  of  discretion  in  the  court.  For  the  object  of  the  ])racticc  is  t9 
come  at  the  justice  of  the  case;  and  the  propriety  of  its  exercise  must 
therefore  depend  upon  the  whole  evidence,  and  all  the  circumstances  which 
have  come  under  the  view  of  the  tribunal  presiding  over  the  trial.  From 
this  rule  result  various  principles  which  the  student  will  find  laid  down  ia 


CHAP.  18.]  NEW    TRIALS.  SOT 

the  books  of  practice  :  such  as  that  a  new  trial  will  not  be  granted  where 
the  plaintiff  has  appeared  entitled  to  the  verdict  he  has  obtained,  or  the  ju- 
ry have  found  for  the  defendant,  although  the  evidence  might  not  in  strict- 
ness have  applied  to  the  case,  provided  justice  appears  to  have  been  done 
between  the  parties.  2  Wils.  362.  4  T.  R.  468.  And  therefore,  though 
the  ground  of  the  verdict  be  wrong,  yet,  if  injustice  had  not  been  done,  or 
it  is  clear  the  plaintiff  could  recover  as  much  by  another  form  of  action,  a 
new  trial  will  not  be  granted.  Burr.  936.  On  like  principles,  thouo-h  the 
verdict  may  not  be  strictly  according  to  evidence,  yet  if  upon  the  whole  it 
a^ipears  to  be  on  the  side  of  justice  and  equity,  or  if  the  plaintiff  has  receiv- 
ed no  real  injury,  and  would  at  most  have  been  entitled  to  a  verdict  only  for 
a  trifle,  it  will  be  sustained.  For  courts  will  not  minister  to  the  litigious 
passions,  by  allowing  new  trials  upon  every  point  of  siimmum  jus.  Burr. 
53.  When,  however,  a  verdict  is  agreeable  both  to  law  and  evidence,  it 
will  not  be  di^sturbed  because  the  case  seems  a  hard  one.     1  Sell.  Prac.  4S8. 

In  adherence  to  the  rule  that  granting  a  new  trial  is  matter  of  discretion, 
to  be  exercised  so  as  best  to  serve  the  ends  of  justice,  the  power  will  not 
be  exerted  even  where  there  has  been  a  misdirection  of  the  court,  if  upon 
the  whole  it  can  be  seen  that  substantial  justice  has  been  done.     2  T.  R.  4. 

A  second  rule  on  this  subject  forbids  the  court  rashly  to  invade  the  pro- 
vince of  the  jury,  to  whom  belongs  the  power  of  deciding  upon  the  weight 
of  evidence,  and  the  credibility  of  witnesses.  Hence,  if  there  be  evidence 
only  on  one  side,  a  new  trial  is  more  readily  granted  than  where  there  is 
contradictory  evidence  introduced  by  the  contending  parties.  It  is  indeed 
said  that,  in  the  latter  case,  a  new  trial  is  never  granted.  1  Sell.  467.  1 
Wils.  22.  3  Wils.  47.  Be  this  as  it  may,  if  in  such  case  it  be  refused  by 
the  court  below,  an  appellate  court  will  not  interfere,  though  the  evidence 
be  spread  upon  the  record,  since  the  court  who  tried  the  cause  and  heard 
the  witnesses  examined  may  be  presumed  better  qualified  to  determine  as 
to  their  credit  than  the  court  of  error. 

In  like  manner,  in  those  cases  where  the  damages  depend  upon  mere 
sentiment  and  opinion,  and  there  is  no  rule  by  which  they  can  be  ascer- 
tained, such  as  cases  of  slander,  assault  and  battery,  and  the  like,  it  is  held 
that  the  court  ought  not  to  set  up  its  judgment  in  opposition  to  that  of  the 
jury,  by  granting  new  trials,  unless  the  verdict  be  flagrantly  excessive,  or  I 
presume,  since  the  j)assage  of  our  act,  flagrantly  inadequate.  1  Sell.  492, 
4j93.  When  this  is  the  case  it  is  deemed  evincive  of  passion  or  prejudice 
in  the  jury,  which  it  is  the  business  of  a  court  to  correct.  There  are,  in- 
deed, some  actions  in  which  no  new  trial  is  ever  granted,  such  as  cases  of 
crim.  con.  and  of  seduction  of  a  daughter.  4  T.  R.  651.  3  Wils.  18.  In 
the  first  of  these  cases,  however,  BuUer,  J,  dissented  ;  and  with  reason,  I 
should  think,  for,  heinous  as  is  the  offence,  it  would  seem  inconsistent  with 
general  principles  to  refuse  a  new  trial,  where  an  entire  disproportion  of 
the  daiTiages  to  the  defendant's  circumstances,  (as  where  they  amounted 
t©  ten  times  what  he  was  worth,)  clearly  indicates  the  predominance  of 
passion  in  the  breasts  of  the  jury.  It  is  the  peculiar  attribute  of  sober  jus- 
tice, not  to  permit  even  its  indignation  against  vice  to  disturb  its  calm  se- 
renity, or  to  hurry  it  in  excesses  by  dethroning  the  judgment  and  yielding 
the  reins  to  the  passions.     See  6  East,  256.     5  Taunt.  277.     2  T.  R.  166. 

But  though  the  court  will  not  set  up  their  opinions  in  opposition  to  the 
jury,  where  the  amount  of  damages  is  mere  matter  of  sentiment  or  opinion, 
yet  where  (as  in  matter  of  contract  it  often  happens)  it  is  matter  of  calcu- 
lation, it  finds  no  difficulty  in  rectifying  errors  into  which  the  jury  may  have 
fallen,  and  in  directing  a  new  trial,  unless  they  be  corrected  by  consent.  4 
T.  E.  658. 


308  NEW    TRIALS.  [  book  3. 

We  may  mention  as  a  third  rule  on  this  subject  the  principle  already  ad- 
verted to,  that  they  will  not  be  granted  to  parties  in  order  to  let  them  into 
a  defence  of  which  they  were  apprised  at  the  first  trial.  2  T.  R.  113.  Nor 
for  want  of  evidence  they  might  then  have  produced.  1  Wils.  98.  Nor 
because  counsel  thought  it  prudent  to  omit  evidence  of  which  they  were  ad- 
vised, though  it  might  have  gone  to  mitigate  damages.  1  Sell.  489.  Nor 
on  account  of  a  mistake  by  a  witness  on  giving  his  evidence  :  for,  to  grant 
them  in  such  cases,  would  be  to  encourage  negligence,  to  induce  counsel 
to  take  double  chances  of  success,  and  to  give  rise  to  tampering  with  wit- 
nesses. Yet  there  is,  perhaps,  nothing  in  the  exercise  of  this  power  which 
more  requires  that  it  should  be  left  in  the  discretion  of  the  court,  than  new 
trials  on  the  ground  of  the  discovery  of  new  evidence  since  the  trial. 
Thus,  to  refuse  a  new  trial  where  the  party  has  really  discovered  new  evi- 
dence of  a  conclusive  character,  such  as  a  receipt  or  release,  would  be 
against  reason  and  authority  :  but  to  allow  it  because  he  has  found  out  other 
witnesses  who  would  go  to  strengthen  those  produced  upon  the  trial,  would 
in  many  cases  lead  to  very  great  abuses.  Thus,  in  an  action  of  slander, 
where  the  defendant  had  introduced  evidence  that  the  plaintiff  was  as  bad 
a  man  as  he  said  he  was,  it  would  be  no  good  ground  for  a  new  trial  that 
the  defendant  had  found  out  other  testimony  to  corroborate  that  which  he 
had  given  on  this  point;  for  that  would  be  infinite.  But  as  no  precise  line 
can  be  drawn,  the  motion  must  of  necessity  be  left  to  the  discretion  of  the 
court,  which  will  take  care  that  verdicts  obtained  by  surprise  shall  not  be 
enforced  on  the  one  hand,  nor  new  trials  obtained  by  trick,  or  on  frivolous 
pretexts,  on  the  other. 

It  must  here  be  remarked,  that  there  is  a  difference  between  a  venire  de 
novo  and  a  new  trial.  A  new  trial  is  usually  granted  on  a  general  verdict, 
a  venire  de  novo  on  a  special  verdict.  The  latter  is  usually  granted  on 
matter  appearing  on  the  face  of  the  record :  the  former  on  matter  extrinsic. 
A  venire  de  novo  is  granted  where  the  verdict  is  on  its  face  so  imperfect 
that  no  judgment  can  be  given  on  it,  or  where  it  appears  that  the  jury  ought 
to  have  found  other  facts  differently.  2  H.  &  M.  318,  Judge  Tucker's 
opinion.     4  Ran.  504. 

A  venire  de  novo  is,  however,  also  awarded  where  the  jury  are  improperly 
chosen  or  irregularly  returned,  or  have  conducted  themselves  improperly; 
or  it  may  be  granted  on  a  demurrer  to  evidence.  2  T.  R.  126,  in  note. 
Thus,  where  there  are  two  issues,  and  the  verdict  answers  to  one  only, 
there  must  be  a  ve7iire  de  novo,  because  part  of  the  cause  is  left  untried. 
And  the  distinction  is  the  more  important  because  when  a  venire  de  novo  is 
awarded,  it  is  not  at  the  costs  of  the  party  who  demands  it,  but  the  costs  of 
the  proceeding  abide  the  general  costs  of  the  action.  On  the  other  hand, 
with  respect  to  new  trials  it  is  provided,  1  R.  C.  ch.  128,  §  27,  that  every 
new  trial  at  law  shall  be  upon  condition  of  paying  the  costs  of  the  former 
trial,  unless  it  be  granted  for  misconduct  of  the  opposite  party.  Even  be- 
fore this  section  was  enacted,  it  was  error,  in  general,  to  award  a  new  trial 
without  payment  of  costs.  1  W.  322.  See  3  T.  R.  553,  where  justice 
BuUer  says,  "  if  the  verdict  is  against  the  justice  of  the  case  and  the  direc- 
tions of  the  court,  as  to  the  law,  a  new  trial  should  be  directed  without 
costs."  Yet  with  us  this  discretion  must  be  controlled,  I  conceive,  by  the 
positive  enactment  of  the  law.  That,  however,  provides  that  "  the  person 
guilty  of  misconduct  (where  the  new  trial  is  awarded  on  that  account)  shall 
be  adjudged  to  pay  the  costs  of  the  former  trial."  1  R.  C.  ch.  128,  §  27. 
It  is  a  general  rule,  that  the  costs  of  a  new  trial  must  always  be  paid  before 
the  second  trial  takes  place.  When  the  cause  is  called  for  trial,  if  the  par- 
ty is  not  ready  to  pay  the  costs  of  the  former  trial,  the  other  party  may  de- 
(Tiand  judgment  to  be  entered  upon  the  verdict.     In  strictnessj  indeed,  the 


CHAP.  18.]  CHANGE  OF  VENUE.  809 

order  of  a  new  trial  should  require  the  costs  to  be  paid  down,  or  should 
provide  that  it  should  only  have  effect  upon  payment  of  costs  within  a  limi- 
ted time,  so  as  to  enable  the  opposite  party  to  know  whether  it  is  necessa- 
ry to  encounter  the  expense  and  trouble  of  preparing  for  another  trial.  But 
this  seems  not  considered  as  essential  ;  thougli  the  payment  of  costs  is  al- 
ways held  to  be  a  condition  precedent.  3  Ran.  52.  It  is  usually  deemed 
sufficient,  indeed,  if  the  party  comes  prepared  to  pay  the  costs  when  the 
cause  is  called,  and  the  jury  is  about  to  be  sworn  on  the  new  trial.  If  he 
does  not,  the  proper  course  is  for  the  court  to  set  aside  the  former  order  and 
enter  judgment  on  the  first  verdict.     3  Ran.  55. 

Where  a  verdict  had  been  rendered  for  the  defendant,  and  a  new  trial 
granted  to  the  plaintiff,  who  thereupon  immediately  ordered  his  suit  to  be 
dismissed  ;  it  seems  the  court  ought  not  to  have  permitted  the  dismissal, 
whereby  he  might  sue  again,  (as  it  did  not  amount  to  a  retraxit,)  but  judg- 
ment ought  to  have  been  entered  on  the  verdict  so  as  to  bar  any  future  ac- 
tion:  this  not  having  been  done,  no  bar  existed.     See  4  Mun.  '207. 

Before  we  leave  the  subject  of  trials,  it  may  not  be  improper  to  subjoin 
the  provisions  of  the  law  for  removing  a  cause  from  one  court  to  another, 
where  there  is  reasonable  ground  for  apprehension  that  a  fair  and  impartial 
trial  cannot  be  had.  See  acts  of  1830,  ch.  11,  §  52.  This  is  called  chang- 
ing the  venue,  (or  neighborhood  from  which  the  jury  are  to  be  summoned,) 
a  measure  which  every  day's  experience  demonstrates  to  be  essential  to  tho 
purposes  of  justice.  Hence  it  is  provided,  that  for  good  cause  shewn  the 
general  court  may  direct  a  cause  depending  in  one  circuit  to  be  tried  in 
another;  1  R.  C.  ch.  67,  §  S  ;  and  in  like  manner  that  any  judge  of  the 
general  court  may  remove  any  cause  depending  in  any  court  within  his 
circuit  to  the  most  convenient  court  in  an  adjoining  circuit.  1  R.  C.  ch. 
69,  §  51.  So,  too,  it  is  provided,  that  the  judges  of  the  superior  courts  shall 
have  power,  for  good  cause  shewn,  to  change  the  venue  in  any  cause  de- 
pending in  either  of  the  courts  of  his  circuit  to  any  other  court  within  the 
same  circuit.  1  R.  C.  ch.  69,  §  51.  And  to  insure  a  trial  by  a  disinterest- 
ed tribunal,  it  is  directed  tliat  if  a  judge  be  interested  in  a  suit  about  to  be 
instituted,  it  may  be  brought  in  an  adjacent  circuit :  or  if  he  be  interested 
in  a  cause  depending,  or  related  to  the  parties,  he  may  remove  it  to  an  ad- 
jacent circuit.  1  R.  C.  ch.  69.  But  if  he  be  Bl  party  in  the  suit,  the  gene- 
ral court  are  required  to  remove  the  cause  for  trial  at  the  bar  of  that  court, 
unless  good  cause  be  shewn  to  the  contrary.  1  R.  C.  ch.  67,  §  9.  And 
finally  the  general  court  may,  for  good  cause  shewn,  direct  the  trial  of  any 
cause  depending  before  a  superior  court  of  law,  to  be  had  by  a  jury  at  their 
own  bar. 

In  the  execution  of  these  provisions  of  the  law  certain  regulations  have 
been  established,  to  which  it  is  proper  to  advert.     Thus: 

By  rule  of  the  general  court,  "  In  all  motions  to  change  the  venue,  the 
petition  and  affidavit  shall  set  forth  the  particular  facts  from  which  the  peti- 
tioner is  induced  to  believe  that  he  cannot  have  a  fair  trial  in  the  county 
where  the  venue  is  laid,  or  to  which  the  cause  has  been  removed,  if  the 
cause  assigned  by  him  is  of  such  a  nature  as  to  admit  of  such  particular 
specification :  and  where  the  cause  assigned  is  of  such  a  nature  as  to  pre- 
clude a  particular  specification,  he  shall  support  his  application  by  affida- 
vits of  disinterested  persons.  In  all  applications  to  change  the  venue,  the 
notice  given  to  the  opposite  party  shall  state  the  cause  to  be  assigned  in 
support  of  the  application."     Hall's  Dig.  Index,  622.     2  Virg.  Ca.  88. 

2.  The  mode  of  arresting  the  judgment  of  the  court  upon  the  verdict  of 
the  jury,  is  by  what  is  called  a  motion  in  arrest  of  judgment.  And  this 
motion  may  be  made  even  after  an  unsuccessful  motion  for  a  new  trial, 


310  ARREST  OF  JUDGMENT.  [  book  3. 

ihouo-li  as  we  have  seen  it  is  too  late  to  move  for  a  new  trial  after  an  unsuc- 
cessful motion  in  arrest  of  judgment. 

"  Arrests  of  judgment*  arise  from  inlrinsic  causes,  appearing  upon  the 
face  of  the  record.  Of  this  kind  are,  first,  where  the  declaration  varies 
totally  from  the  original  writ;  as  where  the  writ  is  in  debt  or  detinue,  and 
the  plaiiitilT  declares  in  an  action  on  the  case  for  an  assumpsit :  for  the 
orio-inal  writ  out  of  chancery  being  the  foundation  and  warrant  of  the  whole 
proceedings  in  the  common  pleas,  if  the  declaration  does  not  pursue  the 
nature  of  the  writ,  the  court's  authority  totally  fails.  Also,  secondly,  where 
the  verdict  materially  differs  from  the  pleadings  and  issue  thereon;  as  if,  in 
an  action  for  words,  it  is  laid  in  the  declaration  that  the  defendant  said,  'the 
plaintiff  is  a  bankrupt;'  and  the  verdict  finds  specially  that  he  said,  'the 
plaintiff  wiUl)C  a  bankrupt.'  Or,  thirdly,  if  the  case  laid  in  the  declaration 
is  not  sufhcieut  in  point  of  law  to  found  an  action  upon.  And  this  is  an 
invariable  rule  with  regard  to  arrests  of  judgment  upon  matter  of  law,  'that 
whatever  is  alleged  in  arrest  of  judgment  must  be  such  matter]  as  would 
Vpon  demurrer  have  been  sufficient  to  overturn  the  action  or  plea.'  As  if, 
on  an  action  for  slander  in  calling  the  plaintiff  a  Jew,  the  defendant  denies 
the  words,  and  issue  is  joined  thereon  :  now,  if  a  verdict  be  found  for  the 
plaintiff,  that  the  words  were  actually  spoken,  whereby  the  fact  is  establish- 
ed, still  the  defendant  may  move  in  arrest  of  judgment,  that  to  call  a  man  a 
Jew  is  not  actjoiiable  :  and,  if  the  court  be  of  that  opinion,  the  judgment 
shall  be  arrested,  and  never  entered  for  the  plaintiff.  But  the  rule  will  not 
hold  e  converse,  'that  every  thing  that  may  be  alleged  as  cause  of  demurrer 
will  be  good  in  arrest  of  judgment  :'t  for  if  a  declaration  or  plea  omits  to 
state  .some  particular  circumstance,  without  proving  of  which,  at  the  trial, 
it  is  impossible  to  support  the  action  or  defence,  this  omission  shall  be 
^.ided  by  a  verdict,"  and  this  was  the  case  even  in  the  common  law,  and 
Independent  of  the  statute  of  Jeofails.  For  it  is  not  the  statute  alone  which 
prohibits  objections  after  a  verdict  to  errors  of  which  the  party  might  have 
availed  himself  by  demurrer.  Long  before  the  statute,  a  distinction  was 
V/ell  settled  between  those  errors  which  were  and  those  which  were  not  cur- 
ed by  verdict.  The  distinction  was  this:  when  there  was  any  defect,  im- 
perfection, or  omission,  whether  in  substance  or  form,  which  would  have 
been  fatal  to  demurrer;  yet,  if  the  issue  joined  be  such  as  necessarily  to 
require  proof  of  the  facts  so  defectively  or  imperfectly  stated  or  omitted, 
and  without  proof  of  which  it  is  not  to  be  presumed  that  the  judge  would 
direct,  or  the  jury  would  find  a  verdict,  such  defect  was  cured  by  the  ver- 
dict, even  at  common  law.  4  Ran.  346.  As  where  a  promise  depends 
upon  the  performance  of  something  to  be  first  done  by  him  to  whom  the 
promise  is  made,  and  the  declaration  does  not  aver  performance,  or  that  he 
was  ready  to  perform;  yet,  if  the  issue  is  joined  on  the  part  of  the  defend- 
ant, and  there  is  a  verdict  for  the  plaintiff,  such  omission  is  cured  even  at 
common  law  ;  because  it  must  be  presumed  the  verdict  would  not  have  been 

•  Tlie  panics  cnnnot  move  in  arrest  of  judgmpnt  for  nny  tliins  tliat  is  aiifed  after  verdict  at  com- 
riion  law,  or  l)y  the  staltile  of  amendments,  or  cured  as  matter  of  form  by  llie  statute  of  Jeofails.  See 
J  Saund.  223,  n.  (1.)  It  is  a  general  rule  that  a  verdict  will  aid  a  title  imperfectly  set  out.  l)Ut  not  an 
imperfect  title.  2  I5iirr.  1159.  3  Wils.  275.  4  T.  R.  472.  'J'he  defendant  cannot  move  in  arrest  of 
judgment  fur  any  thing  wliicii  lie  might  liave  pleaded  in  abatement.  2  lila.  R.  1 120.  Surplusage  will 
imt  vitiate  after  verdict,  a?  in  trover,  stating  the  possession  of  the  goods  in  plaintift'on  the  3d  of  March, 
and  the  conversion  by  defendant  "afterwards,  (o  irit,  on  the  1st  of  Alarcli,"  it  was  held  that  after- 
wards might  stand,  and  the  other  words  be  treated  as  sin'plusage.  Crow.  C  428.  'J'he  motion  in  ar- 
rest of  judament,  k'.c.  may  be  made  in  the  king's  bench  at  any  lime  before  judgment  is  given  ;  5  T. 
K.  44.'j.    2  Sira.  845;  though  a  new  trial  has  been  previously  moved  for.     Doug.  475,  6. 

If  the  judgment  bo  arrested  in  consequence  of  mistake  of  the  (orm  of  action,  or  otherwise,  the 

IiUintiff  is  at  liberty  lo proceed  de  novo  in  a  fresh  action.    1  Mod.  2fJ7.    Vin.  Ab.  tit.  Judgment,  Q.4. 
}la.  K.  831.    Eac!)  parly  pays  hisown  costs  upon  the  judgment  being  arrested.     Cowp.4l)7. — Chitty. 

tit  is  said  that  a  party  may  avail  himself  on  general  demurrer  of  every  advantage  lie  migb'  •'*'*• 
on  a  motion  in  airest  ofjiidifment  and  of  wo  othi>r.  Fer  Lvonii,  J.,  1  Hen.  it  Afiin.  367.  Soo  2 
Burr.  890.    10  p^.  363. 


CHAP. 


18  J  AliREST  OF  JUDGMENT.  311 


found,  unless  the  fact  had  been  proved,  since  without  such  proof  the  verdict 
wouhl  be  obviously  unjust. 

Hence  it  is  considered  that  "  the  verdict  ascertains  those  facts,  which 
before  from  the  inaccuracy  of  the  pleadings  might  be  dubious  ;  since  the 
law  will  not  suppose,  that  a  jury  under  the  inspection  of  a  judge,  would  find 
a  verdict  for  the  plaintift"  or  defendant,  unless  he  had  proved  those  circum- 
stances, without  which  his  general  allegation  is  defective.  Exceptions, 
therefore,  that  are  moved  in  arrest  ot"  judgment,  must  be  much  more  mate- 
rial andglaring  than  such  as  Vv'ill  maintain  a  demurrer:  or,  in  other  words, 
many  inaccuracies  and  omissions,  which  would  be  fatal,  if  early  observed, 
are  cured  by  a  subsequent  verdict;  and  not  suffered,  in  the  last  stage  of  a 
cause,  to  unravel  the  whole  proceedings.  Bui  if  the  thing  omitted  be  es- 
sential to  the  action  or  defence,  as  if  the  plaintifi' does  not  merely  state  his 
title  in  a  defective  manner,  but  sets  forth  a  title  that  is  totally  defective  iil 
itself,  or  if  to  an  action  of  debt  the  defendant  pleads  not  guilty  instead  of 
nil  debet,  these  cannot  be  cured  by  a  verdict  for  the  plaintiff  in  the  first  case, 
or  for  the  defendant  in  the  second  :"— for  as  the  party  is  only  held  to  proof 
of  his  allegations,  it  cannot  be  presumed  that  any  thing  more  was  proved  to 
the  jury  than  what  has  been  alleged;  and  if  what  is  alleged  and  found  by 
the  jury  shews  no  ground  of  action  on  the  one  hand,  or  of  defence  on  the 
other,  no  judgment  should  be  given  for  the  party  whose  case  is  thus  de- 
fective. 

In  like  manner  and  for  like  reasons,  where  there  was  any  defect,  though 
in  form  only,  in  some  collateral  parts  of  the  pleadings  that  were  not  in  is- 
sue between'  the  parties,  so  that  there  was  no  room  to  presume  that  the  de- 
fect was  supplied  by  proof,  there  the  verdict  did  not  cure  them  by  common 
law.  As  where  in  trespass  the  defendant  justified  by  prescribing  for  a  right 
of  common  upon  the  plaintiff's  land,  and  the  replication  did  not  aver  that 
the  cattle  were  levant  and  couchant,  but  the  issue  was  joined  only  upon  the 
prescriptive  right  of  common,  so  that  no  evidence  of  the  fact  of  the  cattle 
being  levant  and  couchant  could  have  come  before  the  jury  ;  the  omission 
was  not  cured  by  verdict.  So  in  debt  on  bond  by  an  administrator  the  de- 
claration omitted  to  allege  by  whom  administration  was  granted,  and  the 
defendant  pleaded  non  est  factum  ;  here  proof  could  not  upon  this  issue  have 
been  given  of  the  administration,  and  therefore  as  it  was  not  stated  in  the  de- 
claration, nor  could  be  presumed  to  have  been  proved,  since  that  fact  had  no 
relation  to  issue,  the  verdict  did  not  cure  it  at  common  law.  But  yet  it 
was  very  hard  that,  for  such  errors  in  merely  collateral  matters,  judgment 
should  be  arrested,  when  the  party  had  succeeded  before  the  jury  upon  the 
point  on  which  his  adversary  had  chosen  to  rest  his  cause.  See  1  Saun: 
228,  n.  1.  This  gave  rise  to  the  statute  of  Jeofails,  of  which  Mr.  Black- 
stone  speaks,  book  3,  page  407.  For  the  common  law  did  not  cure  many 
defects  of  form,  such  as  misjoining  of  issue,  discontinuance,  want  of  aa 
original  writ,  or  variance  between  the  declaration  and  writ,  or  the  omission 
of  a  profert,  or  of  the  words  vi  et  annis,  or  contra  pacein,  or  of  the  verifi- 
cation, or  pr out  patet  per  recordum,  and,  as  has  been  already  said,  only 
cured  such  omissions  as  must,  from  the  nature  of  the  issue  joined,  or  the 
point  tried,  be  presumed  to  have  been  supplied  by  proof.  Hence  it  follows 
as  a  corollary,  that  nothing  was  cured  where  judgment  was  by  default,  for 
the  only  principle  on  which  the  common  law  cured  an  error,  or  omission, 
was  upon  the  supposition,  from  the  character  of  the  issue  joined,  that  the 
defect  must  have  been  supplied  by  proof;  but  as  in  case  of  judgment  by 
default,  there  was  no  trial,  there  was  of  course  no  proof  produced;  hence 
there  is  no  ground  for  the  presumption,  and  therefore  there  is  none  for 
curing  the  defect.  See  Saun.  ubi  sup.  But  the  statute  of  Jeofails  goes 
much  farther.    See  1  R.  C.  ch.  128,  §  103. 


312  ARREST  OF  JUDGiMEx\T.  [  BOOK  3. 

Annthcr  remark  seems  proper  before  we  proceed  to  examine  the  statute 
particularly.  As  the  common  law  cured  such  delects  as  from  the  nature  of 
the  issue  joined  must  be  supplied  by  proof,  the  statute  does  not  affect  such 
cases  :  but  as  the  common  law  neither  cured  defects  of  form  or  substance, 
unless  from  the  nature  of  the  issue  the  defect  must  have  been  presumed  to 
have  been  supplied  by  proof,  all  such  cases  are  within  the  statute.     Hence, 

If  there  be  an  error  or  omission  in  form  or  substance,  we  must  first  ex- 
amine whether  upon  the  issue  joined  such  omission  must  have  been  sup- 
plied by  proof:   if  so,  it  is  cured  by  common  law. 

If  not,  tlien  a  reference  to  the  statute  is  necessary  to  determine  whether 
it  be  within  its  provisions;   and. 

If  it  be  neither  cured  by  the  comiuon  law  or  statute,  the  defect  is  fatal. 

This  distinction  between  cases  at  common  law  and  cases  under  the  sta- 
tute which  are  cured  by  verdict,  is  in  England  extremely  important,  be- 
cause the  statute  of  Anne,  which  provides  for  the  curing  of  errors  after 
judgment  6?/  default,  only  cures  such  as  "  by  any  of  the  statutes  of  Jeofails" 
would  be  cured  after  a  verdict.  It  does  not,  therefore,  cure  (in  cases  of 
judgment  by  default)  such  errors  as  were  cured  at  common  law  by  verdict, 
and  hence  there  may  be  errors  in  England  cured  by  verdict,  (i.  e.  by  force 
of  the  common  law,)  which  are  not  cured  by  judgment  by  default.  See 
Saun.  ubi  supra.  This,  however,  would  seem  not  to  be  the  case  Under  our 
law,  the  terms  of  which  are  general  and  not  limited,  as  in  the  statute  of 
Anne. 

There  is  one  principle,  however,  that  pervades  both  cases  at  common  law 
and  under  the  statute.  It  is,  that  if  the  plaintiff  either  states  a  defective 
title,  or  omits  altogether  to  state  any  title  or  cause  of  action,  neither  the 
common  law  nor  the  statute  cures  the  error  or  omission  ;  for  the  plaintiff 
need  not  prove  more  than  is  expressly  laid  in  his  declaration,  or  is  neces- 
sarily implied  from  the  facts  which  are  stated.  Doug.  G58.  Saun.  ubi  sup. 
4  Ran.  346.  If  he  states  a  defective  title,  by  his  own  showing  he  ought  not 
to  recover:  if  he  states  no  title,  the  presumption  is  irresistible  that  he  can- 
not upon  the  trial  have  made  out  a  case  entitling  him  to  a  judgment,  and 
therefore  it  will  be  arrested.  But  where  he  has  stated  a  good  title  defec- 
tively, then  upon  the  trial  he  must  have  gone  on  to  prove  his  title,  because 
he  had  stated  a  title,  and  there  is  a  ground  for  the  presumption,  that  as  he 
was  under  the  necessity  of  going  into  the  title,  he  must  have  supplied  the 
defect  in  the  statement  of  his  title  by  proof,  or  the  jury  would  not  have  given 
him  a  verdict.  This  distinction  between  stating  no  title  or  a  defective  title, 
on  the  one  hand,  and  stating  a  good  title  or  cause  of  action,  defectively,  on 
the  other,  is  well  established,  and  will  be  found  to  be  recognised  in  all  the 
adjudicated  cases.  Thus,  in  Rushton  vs.  Aspinal,  Lord  Mansfield  states 
the  rule  to  be,  that  where  the  plaintiff  has  stated  his  title  or  ground  of  ac- 
tion defectively,  it  is  a  fair  presumption,  after  a  verdict  in  his  favour,  that 
all  circumstances  necessary  either  in  form  or  substance,  <o  complete  the  title 
so  imperfectly  stated,  must  have  been  proved  at  the  trial,  or  he  could  not  have 
recovered.  But  where  he  altogether  omits  to  state  any  title  or  ground  of  ac- 
tion, it  cannot  be  presumed  he  proved  any  at  the  trial,  (since  he  is  bound 
only  to  prove  what  is  laid  in  his  declaration,  or  is  necessary  to  any  of  the 
facts  charged  in  it.)  And  even  if  such  proof  could  be  presumed,  "  no  proof 
at  the  trial  could  make  good  a  declaration  which  contains  720  ground  of  ac- 
tion on  the  face  of  it,"  or  which  on  the  face  of  it  showed  that  the  plaintiff's 
title  or  ground  of  action  was  defective ;  for  this  would  be  to  presume  that  a 
man  had  proved  before  a  jury  that  he  had  a  good  title,  when,  by  his  own 
showing,  it  appears  he  had  not.  See  Doug.  G83.  In  like  manner,  in  the 
case  of  Winston's  executors  vs.  Francisco,  2  W.  187,  and  in  Chichester  »s. 
Vass,  1  Call,  83,  it  was  decided  that  the  statute  of  Jeofails  did  not  cure  the 


CHAP.  18.]  ARREST  OF  JUDGMENT.  313 

total  want  of  the  averment  of  a  fact  which  constituted  the  gist  of  the  ac- 
tion ;  since  nothing  would  be  presumed  after  verdict  but  what  must  have 
been  necessarily  proved  from  the  averments  in  the  declaration  ;  and  in  the 
succeeding  case  of  Fulgham  vs.  Lightfoot,  1  Call,  250,  it  was  said,  that 
where  facts  necessary  to  the  gist  of  the  action  are  not  stated  at  all,  the  de- 
fect is  not  cured ;  but  it  is  otherwise  where  such  facts  are  stated,  but  stated 
imperfectly  :  see  also  2  W.  210:  for,  as  Judge  Roane  observes,  (3  Man. 
273,)  "the  court  presumes  proof  to  have  been  given  as  to  facts  imperfectly 
laid,  but  not  as  to  facts  not  laid  :  it  only  presumes  such  proof  to  have  been 
given  as  is  called  for  by  the  averments  in  the  declaration." 

These  principles  are  unquestionably  settled,  unless  they  have  been  shaken 
by  the  statute  of  Jeofails,  as  amended  upon  the  revision  of  the  laws  in  1819. 
Much  difference  of  opinion  often  arises,  indeed,  even  among  the  most 
learned,  whether  the  gist  of  the  action  is  omitted,  or  only  imperfectly  stat- 
ed ;  as  may  be  seen  in  the  case  of  Laughlin  vs.  Flood,  3  Mun.  273  ;  but 
whatever  difficulty  there  may  be  in  the  application  of  the  principle,  the 
principle  itself  has  been  firmly  established. 

We  proceed  next  to  consider  the  several  clauses  of  section  103  dis- 
tinctly. 

1.  "No  judgment,  after  a  verdict  of  twelve  men,  shall  be  stayed  or  re- 
versed for  any  defect  or  default  in  the  writ  original  or  judicial,  or  for  a  va- 
riance in  the  writ  from  the  declaration  or  other  proceedings."  See  ante 
247,  in  note.  This  clause  of  our  act  is  more  comprehensive  than  the  Eng- 
lish statute,  which,  after  the  word  variance,  has  the  qualifying  expression  in 
form  only.  Here,  if  the  declaration  is  right,  the  variance  from  the  writ, 
whether  in  matter  of  form  or  substance,  does  not  seem  to  be  fatal.  See 
Stephens  vs.  White,  2  W.  203.  In  England,  indeed,  where  the  defendant, 
in  order  to  take  advantage  of  the  variance,  craves  oyer  of  the  writ,  which  is 
otherwise  (as  we  have  seen)  no  part  of  the  record,  the  court  usually  re- 
fuses it  unless  the  justice  of  the  case  will  be  promoted  by  it.  See  ante 
pleading.  In  the  ease  of  Watson's  executors  vs.  Lynch's  heirs,  the  writ 
was  against  four,  the  declaration  and  judgment  against  three  only.  Judg- 
ment reversed,  not  for  the  variance,  I  conceive,  but  because  the  declaration 
and  judgment  were  against  three  only,  when  it  appeared  by  the  writ  there 
were  four  heirs,  all  of  whoin  ought  to  have  been  joined. 

2.  "  Or  for  any  mispleading,  insufficient  pleading."  Under  this  clause 
the  plea  of  not  guilty  in  covenant,  or  in  an  action  of  debt,  on  prison  bounds 
bond  is  cured  by  a  verdict.  2  W.  143.  1  H.  &  M.  153.  So  the  plea  of 
"the  act  of  limitations,"  in  those  words  only,  is  good  after  verdict,  the 
plaintiff  having  replied  generally.  4  Mun.  444.  In  like  manner,  "pay- 
ment," "conditions  performed,"  or  "covenants  performed,"  in  those 
words  only,  are  considered  as  sufficient  pleas  after  verdict.  So  the  plea  of 
"  fully  administered,"  is  good  after  verdict,  though  it  conclude  to  the  coun- 
try. .  4  Mun.  466. 

3.  "Discontinuance,  or  misjoining  of  issue."  When  the  defendant 
pleads  the  general  issue,  and  puts  himself  upon  the  country,  the  issue  is 
made  up  by  adding  the  similiter,  "  and  the  said  plaintiff  likewise."  Yet 
the  omission  of  this  is  cured  by  a  verdict,  for  the  parties  are  substantially 
at  issue  by  the  affirmation  on  one  side,  and  the  denial  on  the  other,  and  the 
similiter  is  but  matter  of  form.  See  1  W.  363.  See  4  Ran.  488.  In  like 
manner,  after  argument  of  a  demurrer  and  judgment  thereupon,  it  is  too 
late  to  object  that  the  joinder  in  demurrer  was  not  entered.     Gilmer,  338. 

Where  issues  have  not  been,  indeed,  formally  joined,  but  have  been  sub- 
stantially tried  and  a  verdict  found  upon  them,  the  defect  is  cured,  and  no 
advantage  can  be  taken  of  the  informality.     2  W.  1.     Thus,  where  the  de- 
fendant pleaded  payment  and  fully  administered,  concluding  each  with  a 
VOL.  2—40 


314  JEOFAILS.  [book  3. 

verification,  and  also  pleaded  another  special  plea,  and  the  record  stated 
that  the  plaintiff  replied  generally,  and  issue  was  thereupon  joined,  this 
was,  indeed,  irregular  and  informal,  because  to  these  special  pleas  there 
ought  to  have  been  formal  replications,  &.c.  ;  yet  after  a  verdict  the  infor- 
mality was  considered  as  cured.     Ibid.     See  also  2  Call,  514. 

It  must  be  observed,  however,  that  though  the  informal  joining  of  issue  is 
cured  by  the  statute,  yet,  if  no  issue  is  in  fact  made  up,  the  verdict  will  be 
set  aside;  or  if  the  superior  court  render  judgment  upon  it,  the  judgment 
will  be  reversed.  I  W.  155.  2  H.  &  M.  268.  3  Mun.  314.  4  Mun. 
430.  Yet  the  courts  lean  very  far  in  support  of  the  proceedings;  for 
Avhere  the  record  stated  that  the  defendant  tendered  "  a  plea  in  writing  in 
these  words,"  (setting  forth  ^ire  pleas,)  to  which  said  plea  the  plaintiff  re- 
plied generally,  and  issue  was  joined  between  the  parties;  this  was  consi- 
dered a  replication  to  all  the  pleas,  and  a  repleader  was  not  awarded.  4 
Mun.  60. 

Nor  must  it  be  omitted  that  in  a  writ  of  right  all  the  pleadings  must  be 
in  writing  and  at  full  length,  and  therefore  where  the  defendant  put  in  as  a 
plea  the  words  "  usual  plea,"  it  was  decided  that  no  issue  was  joined,  and 
after  verdict  for  defendant  a  repleader  was  awarded.  2  H.  &  M.  161. 
Had  the  verdict,  however,  been  for  the  plaintiff,  the  defendant  could  not  on 
his  motion  have  had  it  set  aside  and  a  repleader  awarded,  because  it  was 
his  own  fault.  Yet,  notv.'ithstanding  the  principle  here  stated,  if  in  a  writ 
of  right  the  record  states  that  the  demandant  "  replied  generally,"  the  court 
will  intend  after  a  verdict  that  the  replication  was  filed  in  writing.  3  H.  & 
M.  309.  For  the  statute  extends  to  writs  of  right,  and  if  the  verdi-ct  and 
judgment  be  substantially  right,  though  not  in  the  words  of  the  law,  they 
ought  not  to  be  disturbed.     Ibid. 

It  is  here  proper  to  remind  the  student  of  the  distinction  formerly  advert- 
ed to,  between  an  informal  issue  upon  a  material  fact,  and  an  issue  how- 
ever formal  upon  an  immaterial  fact.  The  former  is  cured  by  the  statute, 
the  latter  is  not.     I  Chitty,  631.      1  Leo,  32. 

If  there  be  two  issues,  and  the  jury  be  sworn  in  general  terms  to  try  the 
issue  joined,  it  is  no  error  if  the  verdict  is  sufficiently  responsive  to  both  is- 
sues. 3  Call,  19.  But  if  there  be  two  issues,  and  the  verdict  answers  to 
one  only,  there  must  be  a  venire  de  novo,  because  part  of  the  cause  is  left 
untried.  2  H.  &  M.  268.  For  the  cases  in  which  a  venire  de  novo  is  pro-« 
per,  see  2  T.  R.   126,  in  the  note. 

4.  "  Or  for  mistake  of  the  christian  name  or  surname  of  either  party, 
sum  of  money,  quantity  of  merchandise,  day,  month,  or  year,  in  the  decla- 
tion,  the  name,  sum,  quantity,  or  time,  being  right  in  any  part  of  the  record 
or  proceeding." 

Under  this  clause  the  court  of  error  considers  an  amendment  as  being 
actually  made  in  ail  cases  where  it  would  be  proper  to  allow  it  to  be  made. 
2  W.  103. 

I  am  not  informed  whether  the  case  of  Jenkins  vs.  Hurst,  2  Rand.  446, 
was  decided  under  this  clause.  That  was  an  action  of  debt  on  a  simple 
contract,  having  the  form  of  a  penal  bill  in  which  the  declaration  demanded 
the  penalty.  But  though  this  was  confessed  erroneous,  (since  the  sum 
due  should  have  been  demanded,)  yet  it  was  considered  as  cured. 

It  has  been  more  than  once  remarked,  that  at  common  law,  where  the 
cause  had  proceeded  to  issue,  the  writ  was  no  part  of  the  record,  unless  it 
was  made  so  by  oyer.  The  same  principle  still  prevails,  except  so  far  as  it 
is  affected  by  this  clause.  In  the  interpretation  of  the  act,  however,  the 
courts  have  decided  that  the  writ  is  always  to  be  considered  part  of  the  re- 
cord for  purposes  of  amendment,  and  therefore  it  may  be  resorted  to  with- 
out oyer  to  amend  by.     2  W.  203.     Yet  the  act  having  made  it  a  part  of 


CHAP,  lai  JEOFAILS.  315 

the  record  only  with  a  view  to  sustain  the  proceedings,  the  common  law 
rule  still  prevails,  where  it  is  sought  to  overthow  them,  instead  of  support- 
ing them.  2  Mun.  297.  And,  therefore,  where  a  party  would  take  advan- 
tage of  a  defect  in  the  original  writ,  or  a  variance  between  it  and  the  de- 
claration, he  must  still  have  oyer  before  he  can  avail  himself  of  it;  and  we 
have  seen  that  oyer  in  such  cases  is  not  usually  granted  unless  the  justice 
of  the  case  requires  it.     2  W.  212.     4  H.  &  M.  309,  310.     2  Mun.  297. 

Under  this  clause,  if  the  verdict  of  the  jury  is  for  more  damages  than  are 
laid  in  the  declaration,  but  those  laid  in  the  writ  are  high  enough,  the  de- 
claration may  be  amended  by  the  writ,  and  the  judgment  will  be  entered 
according  to  the  verdict.  3  H.  &  M.  502.  So  if  there  are  no  damages 
laid  in  the  declaration,  the  court  will  inspect  the  writ  and  supply  them  from 
It.     3  H.  &  M.  268. 

5.  "Or  for  omitting  the  averment  of  any  matter,  without  proving  which 
the  jury  ought  not  to  have  given  such  a  verdict."  Much  has  been  already 
said  on  this  clause,  and  on  the  necessity  of  setting  forth  the  gist  of  the 
action. 

A  declaration  on  behalf  of  a  co-partnership  in  the  name  of  the  firm, 
without  setting  out  the  partners,  will  support  a  judgment  after  a  verdict  for 
the  plaintiff,  on  the  general  issue.     6  Mun,  219. 

With  resjject  to  blanks  in  the  declaration,  it  has  been  adjudged  that 
though  in  a  count  for  money  had  and  received,  the  sum  alleged  to  have 
been  received  is  left  blank,  yet  after  a  verdict  it  is  immaterial.  3  Mun. 
550.  So,  though  in  assault  and  battery  the  time  of  the  battery,  or  in  an 
action  for  breach  of  marriage  promise,  the  time  when  the  marriage  was  to 
have  taken  place  is  left  blank,  judgment  will  neither  be  arrested  nor  revers- 
ed after  a  verdict.  3  H.  &  M.  268.  4  Mun.  219.  Yet  where  the  decla- 
ration was  blank  as  to  sum,  date,  assignment  and  damages,  an  office  judg- 
menl  rendered  thereupon  was  deemed  erroneous.  2  Call,  495.  But  the 
writ  in  this  case  appears  to  have  been  also  defective. 

Notwithstanding  this  clause,  the  student  will  remember  that  in  actions 
on  assigned  bonds,  if  the  declaration  does  not  distinctly  assign  a  failure  on 
the  part  of  all  the  obligors  to  pay  the  amount  due  to  any  of  the  obligees, 
assignors,  &.c.  as  well  as  to  the  plaintiff,  it  is  faulty,  and  the  error  is  not  cured, 
for  therein  is  the  gist  of  the  action.  2  Mun.  282,  518.  See  also  2  Mun. 
336. 

If  in  detinue  the  declaration  omit  the  words  "that  the  defendant  render 
to  the  plaintiff,"  upon  non  detinet  pleaded  and  issue  joined,  and  a  verdict 
for  plaintifi",  the  error  is  cured,  6  Mun.  486;  for  the  issue  made  up  on  the 
part  of  the  plaintiff  implies  the  demand. 

6.  "  Or  for  setting  forth,  by  way  of  recital,  any  matter  which  ought  to 
have  been  set  forth  by  averment."  This  clause  was  inserted  at  the  late  re- 
visal,  with  a  view  to  change  the  law  as  to  what  are  familiarly  called  the 
quod  cum  cases.  Thus  we  have  seen,  if  in  assault  and  battery  or  trespass, 
the  declaration  begins,  'for  that  whereas,'  and  continues  by  way  of  recital 
to  the  end,  it  was  before  this  act  incurably  faulty  :  3  H.  &  M.  127  :  and  the 
like  principle  was  applied  by  the  decisions  of  the  courts  to  debts  on  bond 
with  collateral  conditions,  4  H.  &  M.  277,  and  to  assumpsit,  3  Mun.  566, 
and  slander,  4  Mun.  261  ;  in  all  which  the  error  was  fatal,  if  the  charge  in 
the  declaration  was  throughout  by  way  of  recital  only.  By  this  act  these 
defects  are  cured  after  verdict.  The  defendant  who  would  avail  himself  of 
them,  should  demur  therefore  as  well  as  plead. 

7.  "  Or  for  not  alleging  that  the  suit  or  matter  is  within  the  jurisdiction 
of  the  court."  On  this  subject  see  1  W.  81,  87.  3  H.  &  M.  309.  5 
Mun.  27. 


316  JEOFAILS.  [book  3. 

8.  "Of  for  not  alleging  that  the  property  in  the  declaration  mentioned 
is  the  property  of  the  plaintiff."  Until  this  clause  was  inserted  in  the  re- 
visal  of  1819,  this  error  was  deemed  fatal.     4  Mun.  72. 

9.  "Or  for  any  mistake  or  misconception  of  the  form  of  action."  Until 
the  revisal  of  1819  a  mistake  herein  was  fatal,  as  where  trespass  vi  et  armis 
was  brought  instead  of  trespass  on  the  case,  and  vice  versa.  2  H.  &  M. 
423.  How  far  the  provisions  of  this  short  clause  may  be  extended,  it  is  im- 
possible to  foresee  ;  whether  it  will  be  construed  to  break  down  all  the 
barriers,  so  sedulously  erected  by  the  courts  between  the  several  forms  of 
action,  or  will  be  restricted  within  narrower  limits,  time  alone  can  develope. 
We  have  already  seen  that  the  error  of  bringing  case  instead  of  trespass  is 
cured  after  verdict.  2  Ran.  440.  Should  it  be  decided  that  to  bring  as- 
sumpsit instead  of  covenant,  or  debt  instead  of  assumpsit,  or  any  of  them 
instead  of  detinue,  &c.  is  no  longer  material  after  verdict,  it  is  difficult  to 
divine  what  will  become  of  the  whole  system  of  pleading  in  a  few  years. 

10.  "  Or  for  any  other  defect  whatsoever  in  the  declaration  or  pleading, 
whether  of  form  or  substance,  which  might  have  been  taken  advantage  of 
by  demurrer,  and  which  shall  not  have  been  so  taken  advantage  of."  This 
clause  was  inserted  at  the  revisal  of  1819,  and  the  effect  of  it  has  not  yet 
been  declared  by  judicial  decision.  It  seems  to  me  sufficiently  comprehen- 
sive in  its  language  to  embrace  any  conceivable  case,  and  to  sweep  away  at 
once  the  train  of  adjudications  which  have  had  their  foundations  in  a  de- 
sire to  keep  distinct  the  several  forms  of  actions,  and  to  preserve  something 
like  precision  in  pleading,  with  a  view  to  attain  its  great  objects.  For  we 
must  remember  that  these  objects  are,  first,  that  each  party  shall  give  his 
adversary  fair  notice  of  his  claim  or  defence,  that  he  may  not  be  surprised 
upon  the  trial.  Secondly,  that  the  plaintiff  should  state  his  demand  with 
so  much  certainty  at  least  as  to  enable  the  defendant  in  any  subsequent  ac- 
tion to  show  by  the  record  that  it  has  been  satisfied.  Thirdly,  to  bring 
before  the  proper  tribunal  for  trial,  some  certain,  distinct,  and  simple  ques- 
tion. I  shall  not  enter  into  any  disquisition  to  show  how  entirely  all  these 
ends  of  pleading  are  frustrated  by  the  provisions  contained  in  this  clause, 
should  the  courts  give  their  full  latitude  to  the  expressions  used  by  the  le- 
gislature. They  are  sufficiently  obvious  even  to  the  tyro,  and  every  day's 
practice  will  serve  more  fully  to  develope  the  inconveniences  most  likely 
to  flow  from  such  crude  legislation.  I  cannot,  however,  omit  to  remind  the 
student  of  the  advice  heretofore  given,  to  demur  as  well  as  plead  in  all  im- 
portant cases  :  by  which  means  the  force  of  this  clause  is  evaded.  See  4 
Ran.  161,  1G3. 

11.  The  last  clause  of  the  statute  applies  to  judgments  by  «tAi7fZici/,  now 
sum  informatus,  or  after  writ  of  inquiry  ;  all  of  which  are  placed  upon  the 
footing  of  judgments  after  a  verdict.  Herein,  as  has  already  been  observ- 
ed, our  act  is  more  comprehensive  than  the  English  statutes.  For  they 
only  cure  (after  judgment  by  default,  &c.)  such  errors  as  the  statutes  them- 
selves cured  after  verdict,  but  not  such  as  were  cured  at  common  law  after 
verdict  only.  Our  act  appears  to  place  the  judgment  by  default  after  ap- 
pearance ill  all  respects  on  the  footing  of  the  judgment  after  verdict.  See 
1  Saun.  228,  n.  1.* 

There  are  several  other  sections  of  the  statute  of  Jeofails  to  which  re- 
ference must  be  particularly  made  before  we  conclude  this  subject. 

It  is  provided,  sec.  102,  that  after  issue  joined  in  ejectment  on  the  title 
only,  no  exception  of  form  or  substance  shall  be  taken  to  the  declaration. 

*In  casesof  judgment  by  default  for  want  of  appearance,  the  statute  cures  nothing.  3Leieli,270. 
6  "^an.  102.  For  where  there  hrs  been  no  appearance,  there  is  no  room  to  infer  tiiat  ilie  party  waives 
ol)jections  to  proccedinK«  he  never  has  seen,  iiut  where  he  lias  appeared,  and  s-avs  notliingby  way 
of  picaor  objection,  It  may  fairly  Ije  inferred  that  he  waives  all  objection.  Hence  a  judgment  by  nU 
dictt  IS  on  the  footing  of  a  judymcnt  aftcri  vcrUict. 


CHAP.  18.]  JEOFAILS.  317 

Under  this  clause  it  has  been  decided,  that  if  the  demise  and  ouster  be  laid 
precedent  to  the  plaintiffs  title,  the  defect  is  cured.  3  Call,  302.  See  3 
Mun.  93.     4  Mun.  468. 

Sec.  104.  "  Where  there  are  several  counts,  one  of  which  is  faulty,  and 
entire  damages  are  given,  the  verdict  shall  be  good,  but  the  defendant  may 
apply  to  the  court  to  instruct  the  jury  to  disregard  the  faulty  count."  If  he 
fails  to  do  this  the  verdict  will  not  be  disturbed.  1  H.  &  M.  361.  If  the 
court  refuse  in  such  case  to  instruct,  he  should  except  to  the  opinion. 

If  the  declaration  consist  of  several  counts,  some  of  which  only  are  faul- 
ty, if  the  defendant  demurs,  he  must  demur  specially,  for  a  general  demur- 
rer would  be  overruled.  1  H.  &  M.  361.  1  Wilson,  25-2.  Ante,  264.  1 
Saun.  286.     2  Saun.  380. 

Sec.  105.  "  If  in  detinue  the  verdict  omit  price  or  value,  the  court  may 
at  any  time  award  a  writ  of  inquiry  to  ascertain  the  same."  And  if  the 
verdict  improperly  ascertain  \a\u.es  jointly,  a  writ  of  inquiry  will  be  direct- 
ed. 2  Mun.  195.  2  Call,  313.  In  detinue,  if  the  jury  find  for  the  plain- 
tiff the  slaves  in  the  declaration  mentioned,  and  proceeding  to  set  forth 
their  names  mistake  one  of  them,  such  error  may  he  corrected  by  reference 
to  the  declaration.     4  Mun.  145.     See  also  5  Mun.  82. 

'•'  If  on  an  issue  concerning  several  things  in  one  count  in  detinue,  no 
verdict  be  found  for  part  of  them,  it  shall  not  be  error,  but  the  plaintiff  shall 
be  barred  of  his  title  to  the  things  omitted."  Sec.  105.  Before  this  clause 
was  introduced  into  the  act,  such  a  verdict  was  deemed  erroneous  and  was 
set  aside,  and  a  venire  de  novo  awarded.     See  1  W.  76. 

A  venire  de  novo  is  granted  where  the  jury  are  improperly  chosen  or  irre- 
gularly returned,  or  have  conducted  themselves  improperly,  or  find  an  im- 
perfect verdict ;  or  it  may  be  granted  on  a  demurrer  to  evidence.  2  T.  R. 
126,  in  note.     See  4  Ran.  504. 

Sec.  106.  "  A  confession  of  judgment  shall  be  equal  to  a  release  of  er- 
rors." And  a  relinquishment  of  plea,  and  agreeing  to  the  plaintiff's  da- 
mages, is  a  confession  of  judgment.  3  Mun.  167.  It  has  also  been  de- 
cided, that  a  confession  of  judgment  on  a  forthcoming  bond,  operates  as  a 
release  of  errors  in  the  original  judgment  and  proceedings.  1  Rand.  44. 
3  Rand.  160.  3  Leigh,  68].  And  the  reason  seems  obvious,  for  if  the 
defendant  acknowledges  the  judgment  against  him  to  be  just,  of  what  im- 
portance can  it  be  whether  the  proceedings  in  the  original  cause  were  re- 
gular or  irregular. 

Sec.  107.  "An  execution,  writ,  or  other  process,  appearing  to  be  duly 
served  in  other  respects,  shall  be  deemed  good,  though  not  directed  to  any 

sheriff."     And  though  directed  to  the  sheriff  of county,  it  may  be 

executed  by  the  serjeant  of  a  corporation.     Per  Taylor,  C.  4  H.  &  M.  404. 

It  is  proper  to  add  here,  that  if  errors  in  the  proceedings  are  cured  as  to 
one  defendant  in  an  action  on  contract,  they  are  cured  as  to  all.  2  Rand. 
446.  Moreover,  though  the  amendment  be  not  actually  made,  yet,  if  the 
party  had  a  right  to  make  it,  it  will  be  considered  as  made.     See  Post. 

Besides  the  various  provisions  we  have  noticed,  for  the  prevention  of  fri- 
volous objections  to  the  proceedings  in  courts  of  law%  where  the  verdict  of 
a  jury  has  been  rendered  in  favor  of  either  party,  certain  salutary  regula- 
tions iiave  been  adopted  by  a  comparatively  recent  statute,  for  the  correc- 
tion of  mistakes  in  the  judgments  or  decrees  of  the  superior  courts  of  law 
or  equity.     It  is  thereby  enacted  ; 

1.  That  where  there  is  a  mistake,  miscalculation,  or  misrecital  in  any 
judgment  or  decree,  of  a  superior  court  of  law  or  equity,  of  any  sum  of 
money,  tobacco,  wheat,  or  other  thing,  or  of  any  name  ;  and  there  be  in 
the  record  any  verdict,  bond,  bill,  note,  or  other  writing  of  like  kind,  where- 
by the  error  can  be  safely  amended,  the  same  may  be  amended  by  such 


318  EEPLEADER.  [  BOOK  3. 

court  accordincf  to  the  very  truth  and  justice  of  the  case ;  see  Winston  vs. 
C.  W.  5  Rand.,  and  Marks  vs.  Garland,  and  Eubank  vs.  Ralls,  4  Leigh; 
and  if  the  cause  is  depending  in  the  court  of  appeals  at  the  time  of  the 
amendment,  or  afterwards,  that  court,  upon  the  inspection  of  the  amended 
record,  shall  affirm  the  judgment  if  there  be  no  other  error.  Notice  of  the 
motion  to  amend  must  be  given  to  the  adverse  party.  1  R.  C.  ch.  128,  § 
108.     Sec  1  Rand.  Bent  vs.  Patton. 

2.  Where  any  bond,  taken  by  virtue  of  a  distress  for  rent,  or  upon  execu- 
tion,  is  by  mistake  taken  for  too  much,  or  where  verdict  and  judgment  is 
rendered  for  more  damages  than  the  plaintiff  has  demanded,  the  plaintiff 
may,  even  after  the  term  has  passed,  release  the  excess ;  such  release  may 
be  made  at  any  time  before  the  cause  is  removed  to  an  appellate  court,  either 
in  open  court,  or  by  deed  attested  by  the  clerk,  or  his  deputy,  and  the  er- 
ror is  thereby  cured.  Or  if  the  cause  is  removed  by  appeal,  before  the  re- 
lease is  made,  it  may  then  be  made  in  the  appellate  court,  and  that  court, 
after  reversing  the  judgment  as  erroneously  given,  is  required  to  enter  such 
judgment  as  the  court  below  ought  to  have  entered  if  the  release  had  been 
filed  therein.  1  R.  C.  ch.  128,  §  109,  110.  In  these  cases,  however,  the 
error  cannot  be  corrected,  unless  it  be  such  a  mistake,  miscalculation,  &-c. 
as  amounts  to  a  clerical  misprision.  An  error  oi'  judgment  on  the  part  of 
the  court  cannot  be  so  corrected.  And  hence,  in  Bent  vs.  Patton,  1  Ran. 
25,  the  judgment  having  been  entered  for  six  per  cent,  interest  on  a  con- 
tract carrying  only^t-e  per  cent.,  and  the  court  of  appeals  regarding  this  as 
an  error  of  judgment  in  the  court,  and  not  a  clerical  misprision  or  mistake, 
would  not  permit  the  plaintiff  to  remit  the  illegal  one  per  cent,  in  the  court 
of  appeals. 

The  student  will  observe  in  the  109th  clause,  that  the  party  has  leave  to 
release,  and  thereby  amend  the  judgment,  even  after  the  term  has  passed  in 
which  such  judgment  was  rendered.  We  shall  have  occasion  hereafter  to 
shew  that  the  common  law  rules  inhibit  any  alteration  by  any  court  what- 
soever of  its  judgment  or  proceedings,  at  any  time  after  the  expiration  of 
the  term,  when  a  final  judgment  may  have  been  rendered  therein. 

Returning  from  the  digression  into  which  we  have  been  led  by  consider- 
ing the  several  clauses  of  the  statute  of  Jeofails,  1  proceed  to  present  an- 
other state  of  a  cause  in  which  the  court  will  not  proceed  to  give  judgment 
on  the  verdict  of  the  jury,  but  will  be  compelled  to  arrest  or  suspend  their 
judgment  until  other  proceedings  shall  take  place.  This  happens  where 
"  by  the  misconduct  or  inadvertence  of  the  pleaders,  the  issue  be  joined  on 
a  fact  totally  immaterial,  or  insufficient  to  determine  the  right,  so  that  the 
court  upon  the  finding  cannot  know  for  whom  judgment  ought  to  be  given  ; 
as  if,  in  an  action  on  the  case  in  assumpsit  against  an  executor,  he  pleads 
that  he  himself  (instead  of  the  testator)  made  no  such  promise  ;  or  if,  in  an 
action  of  debt  on  bond  conditioned  to  pay  money  on  or  before  a  certain  day, 
the  defendant  pleads  payment  on  the  day ;  (which  issue,  if  found  for  the 
plaintiff,  would  be  inconclusive,  as  the  money  might  have  been  paid  before  ;). 
in  these  cases  the  court  will  after  verdict  award  a  repleader  ;  quod  partes  re- 
placitent ;  unless  it  appears  from  the  whole  record  that  nothing  material 
can  possibly  be  pleaded  in  any  shape  whatsoever,  and  then  a  repleader 
would  be  fruitless.  See  ante,  262.  And,  whenever  a  repleader  is  granted, 
the  pleadings  must  begin  de  novo  at  that  stage  of  them,  whether  it  be  the 
plea,  replication,  or  rejoinder,  &c.  wherein  there  appears  to  have  been  the 
first  defect,  or  deviation  from  the  regular  course." 

It  seems  to  be  a  rule  that  a  repleader  is  not  grantablo  at  the  instance  of 
the  party  who  committed  the  first  fault  in  pleading.  Doug.  396.  3  H.  & 
M.  388.  Tidd's  Prac.  813,  cited  1  Chitty,  634.  The  distinction  may  be 
illustrated  by  the  case  cited  from  Henning  and  Munford.     Where  the  dc' 


CHAP.  18.]  REPLEADER.  319 

fendant  to  a  declaration  in  slander  pleads  the  word  "justification,"  and  a 
verdict  is  rendered  for  him,  the  plaintiff  may  demand  a  repleader;  but  if 
the  plaintiff  had  obtained  a  verdict,  the  defendant  could  not  have  had  a  re- 
pleader awarded  on  account  of  this  fault,  for  it  was  a  fault  of  his  own.    See 

2  Call,  379.  In  like  manner,  if  in  debt  on  bond  with  collateral  condition, 
the  condition  and  breach  be  not  set  forth  in  the  declaration,  and  defendant 
pleads  conditions  performed,  and  the  plaintiff  replies  generally,  failing  still 
to  set  forth  the  breach,  a  repleader  must  be  awarded  if  the  judgment  is  in 
his  favour.  5  Mun.  246.  It  would  have  been  otherwise  if  defendant  had 
obtained  a  verdict.  A  repleader,  however,  is  never  awarded  where  there  is 
enough  in  th€  record  to  enable  to  court  to  give  judgment,  or  to  show  that 
even  if  the  pleading  had  been  proper  the  judgment  must  have  been  the  same. 

3  Call,  248.  See  also  2  H.  &  M.  161.  3  H.  &  M.  118.  1  W.  155.  1 
Chitty,  633.  I  Saun.  319,  n.  6,  and  particularly  2  Salk.  579.  2  Ld.  Ray. 
922,  and  1  Burr.  292,  on  tl>e  subject  of  repleaders. 

In  the  valuable  edition  of  Blackstone's  commentaries  by  Judge  Tucker, 
it  is  stated  in  a  note  to  the  doctrine  of  repleaders  as  laid  down  by  the  com- 
mentator, that  if  the  declaration  be  defective,  as  well  as  the  subsequent 
pleadings,  no  repleader  shall  be  awarded  ;  and  Smith  vs.  Walker,  executor 
of  Michie,  I  Wash.  L35,  is  cited  as  the  authority  in  support  of  this  position. 
I  humbly  conceive,  however,  that  the  case  of  Smith  vs.  Walker  does  not 
maintain  the  principle  as  broadly  as  it  has  been  laid  down  by  the  learned 
annotator.  That  was  a  suit  against  a  father  by  his  son-in-law,  upon  an  al- 
leged promise  to  give  the  plaintiff's  wife,  on  her  marriage,  as  much  as  he 
should  give  to  his  other  children  :  but  the  declaration  contained  no  allega- 
tion that  he  had  given  his  other  children  any  thing.  Thus  there  was  no- 
thing from  which  the  court  could  infer  that  the  plaintiff  had  a  right  to  any 
thing.  The  declaration  shewing  no  cause  of  action,  and  the  record  exhib- 
iting no  evidence  of  the  existence  of  other  facts,  which  might  have  made  out 
a  good  case,  the  judgment  was  arrested  and  the  suit  dismissed,  because  no 
good  foundation  appeared  in  the  cause  on  which  to  erect  new  pleadings. 
IH.  &M.  422,  2  Mun.  518.  See  5  Mun.  251.  3  Mun.  258.  The 
books  clearly  show  that  if  the  declaration  is  not  radically  defective,  that  is, 
if  it  does  not  state  a  defective  case,  but  only  states  a  good  case  defectively, 
a  repleader  may  be  awarded,  and  when  so  awarded  the  proceedings  are  set 
aside  up  to  the  writ,  an<l  the  parties  begin  de  novo.  See  2  Salk.  579.  Bac. 
Abr.  Plead.  M.  3  Keble,  664.  1  Chitty,  633.  The  like  principle,  I  con- 
ceive, has  prevailed  in  other  cases,  where,  instead  of  awarding  a  repleader, 
the  court  of  appeals  have  proceeded  to  reverse  the  judgments  for  the  plain- 
tiff in  toto,  and  enter  judgment  for  defendants.  In  all  such  cases  the  plain- 
tiff's declaration  has  been  radically  defective,  showing  no  cause  of  action 
whatever ;  and  as  the  court  of  error  could  not  know  whether  the  facts  ne- 
cessary to  make  a  good  cause  of  action  did  or  did  not  exist,  they  dismissed 
his  suit  accordingly. 

The  case  of  Hill  vs.  Harvey  was  that  of  an  office  judgment,  where  the 
declaration  was  defective.  The  judgment  being  by  default  and  entered  in 
the  office,  and  the  writ  being  in  such  case  considered  as  an  essential  part  of 
the  record  by  the  operation  of  the  act  of  Jeofails,  because  without  it  the 
office  judgment  could  not  be  supported,  the  court,  instead  of  dismissing  the 
suit,  set  aside  the  proceedings  up  to  the  writ,  and  sent  the  cause  back  for 
further  proceeding.     2  Mun.  526. 

The  principle  of  this  case  sufficiently  evinces  the  desire  of  the  court  to 
seize  upon  any  thing  which  may  sustain  the  party's  right  to  proceed  in  his 
suit,  where  it  does  not  appear  that  in  truth  he  has  no  ground  of  action. 
Where  this  appears,  it  would  be  useless  indeed  to  turn  the  parties  around 


320  JUDGMENT.  [book  3. 

to  plead  de  novo.     And  this,  as  I  understand,  is  all  that  is  decided  in  the 
case  of  Smith  vs.  Walker. 

In  the  same  note  of  Judge  Tucker  above  quoted,  he  states  the  following 
case,  citing  1  Call,  257,  as  his  authority  :  "If  one  be  sued  both  as  heir  and 
devisee  upon  the  obligation  of  his  ancestor,  and  pleads  rien  per  discent,  and 
no  other  plea,  and  thereupon  issue  be  joined  and  a  verdict  for  the  plaintiff, 
a  repleader  must  nevertheless  be  awarded,  for  the  issue  has  only  tried  the 
right  as  to  the  descent  and  not  as  to  the  devise."  The  deserved  celebrity  of 
this  work  of  the  American  annotator,  and  its  being  in  the  hands  of  every 
student  who  can  procure  a  copy  of  it,  renders  it  peculiarly  proper  to  advert 
to  any  casual  inaccuracies  that  may  have  crept  into  it.  I  must  therefore 
remark  upon  this  passage,  that  the  case  here  cited  is  essentially  misstated 
in  an  important  particular.  The  verdict  was  for  the  defendant,  and  the  re- 
pleader awarded  in  behalf  of  the  plaintiff;  for  the  defect  being  in  the  de- 
fendant's plea,  the  repleader  could  not  on  principle  have  been  awarded  at 
his  instance  or  for  his  benefit.     See  Doug.  -396.     3  H.  &  M.  388.* 

"  If  judgment  is  not  by  some  of  these  means  arrested,  it  is  then  to  be  en- 
tered on  the  record.  Judgments  are  the  sentence  of  the  law,  pronounced 
by  the  court  upon  the  matter  contained  in  the  record  ;  and  are  of  four  sorts. 
First,  where  the  facts  are  confessed  by  the  parties,  and  the  law  determined 
by  the  court ;  as  in  case  of  judgment  upon  demurrer  :  secondly,  where  the 
law  is  admitted  by  the  parties,  and  the  facts  disputed;  as  in  case  of  judg- 
ment on  a  verdict :  thirdly,  where  both  the  fact  and  the  law  arising  thereon 
are  admitted  by  the  defendant ;  which  is  the  case  of  judgments  by  confes- 
sion or  default:  or,  lastly,  where  the  plaintiff  is  convinced  that  either  fact, 
or  law,  or  both,  are  insufficient  to  support  his  action,  and  therefore  aban- 
dons or  withdraws  his  prosecution  ;  which  is  the  case  in  judgments  upon  a 
nonsuit  or  retraxit. 

"  The  judgment,  though  pronounced  or  awarded  by  the  judges,  is  not 
their  determination  or  sentence,  but  the  determination  and  sentence  oi  the 
law.  It  is  the  conclusion  that  naturally  and  regularly  follows  from  the 
premises  of  law  and  fact,  which  stands  thus  :  against  him,  who  hath  rode 
over  my  corn,  I  may  recover  damages  by  law :  but  A  hath  rode  over  my 
corn  ;  therefore,  I  shall  recover  damages  against  A.  If  the  major  propo- 
sition be  denied,  this  is  a  demurrer  in  law  :  if  the  minor,  it  is  then  an  issue 
of  fact:  but  if  both  be  confessed  (or  determined)  to  be  right,  the  conclu- 
sion or  judgment  of  the  court  cannot  but  follow.  Which  judgment  or  con- 
clusion depends  not  therefore  on  the  arbitrary  caprice  of  the  judge,  but  on 
the  settled  and  invariable  principles  of  justice.  The  judgment,  in  short,  is 
the  remedy  prescribed  by  law  for  the  redress  of  injuries ;  and  the  suit 
or  action  is  the  vehicle  or  means  of  administering  it.  What  that  remedy 
may  be,  is  indeed  the  result  of  deliberation  and  study  to  point  out;  and, 
therefore,  the  style  of  the  judgment  is,  not  that  it  is  decreed  or  resolved 
by  the  court,  for  then  the  judgment  might  appear  to  be  their  own ;  but,  'it 
is  considered,'  consideratum  est  per  curiam,  that  the  plaintiff  do  recover  his 
damages,  his  debt,  his  possession,  and  the  like  :  which  implies  that  the 

*0n  ilie  subject  of  repleaders,  Mr.  Cliilty  gives  the  following  siimirary,  which  may  be  useful  to 
tlie  student : 

The  following  rules  have  been  laid  down  on  this  subject :  A  repleader  ought  never  to  be  allowed 
till  trial,  bccau^^e  the  fault  of  the  issue  may  be  helped  after  the  verdict  by  the  statute  of  Jeofails 
2dly.  If  the  repleader  be  (lenied  where  it  should  be  granted,  or  granted  where  it  should  be  denied, 
ills  error.  3dly.  'I'he  lud^'tncnt  of  repleader  is  general,  and  the  parties  must  begin  again  at  the  (irst 
fault  wliicli  occasioned  the  immaterial  issue.  J  Lord  Raym.  lG!t.  Thus  if  the  declaration  be  ill,  and 
the  bar  and  replication  are  al^o  ill, the  particsrnusi  begin  deiiovo:  but  if  the  bar  be  good  andlhe  re- 
plication ill,  at  the  replication,  a  Keb.  (iG4.  4ihly.  No  costs  are  allowed  on  either  side.  6  T.  R. 
131.  2  B.  &  P.  :i7G.  5thly.  That  a  repleader  cannot  be  awarded  after  a  default  at  nisi  prius;  to 
wliicli  may  be  added,  that  it  can  never  be  awarded  after  a  demurrer  or  writ  of  error,  but  only  after 
issue  Joined.  3  Salk.  3()G.  Nor  where  the  court  can  give  judgment  on  the  whole  record,  Willes,  532; 
and  it  is  not  grantablc  in  favour  of  the  person  who  made  the  first  fault  in  pleading.  Doug.  396;  see 
2  Saund.  319,  b.  Chitty. 


CHAP.  18.]  WRIT  OF  INQUIRY,  321 

judgment  is  none  of  their  own  ;  but  llie  act  of  law,  pronounced  and  de- 
clared by  the  court,  after  due  dehberation  and  inquiry. 

"  All  these  species  of  judgments  are  either  inlcrlociitonj  or  fatal.  Inter- 
locutory judgments  are  such  as  are  given  in  the  middle  of  a  cause,  upon 
some  plea,  proceeding,  or  default,  which  is  only  intermediate,  and  docs  not 
finally  determine  or  complete  the  suit.  Of  this  nature  are  all  judgments  for 
the  plaintiff  upon  [demurrers  to]  pleas  in  abatement  of  the  suit  or  action  : 
in  which  it  is  considered  by  the  court,  that  the  defendant  do  answer  over, 
respondeat  ouster :  that  is,  put  in  a  more  substantial  plea.  It  is  easy  to  ob- 
serve, that  the  judgment  here  given  is  not  final,  but  merely  interlocutory  ; 
for  there  are  afterwards  farther  proceedings  to  be  had,  when  the  defendant 
has  put  in  a  better  answer. 

"But  the  interlocutory  judgments,  most  usually  spoken  of,  are  those  in- 
complete judgments,  whereby  the  right  of  the  plaintiff  is  indeed  establish- 
ed, but  the  quantum  of  damages  sustained  by  him  is  not  ascertained  :  which 
is  a  matter  that  cannot  be  done  without  the  intervention  of  a  jury.  This 
can  only  happen  where  the  plaintiff  recovers  ;  for,  when  judgment  is  given 
for  the  defendant,  it  is  always  complete  as  well  as  final.  And  this  happens, 
in  the  first  place,  where  the  defendant  suffers  judgment  to  go  against  him 
by  default,  or  nihil  dicit ;  as  if  he  puts  in  no  plea  at  all  to  the  plaintiff's 
declaration :  by  confession  or  cognovit  actionem,  where  he  acknowledges 
the  plaintiffs  demand  to  be  just :  or  by  non  sum  informatus,  when  the  de- 
fendant's attorney  declares  he  has  no  instructions  to  say  any  thing  in  an- 
swer to  the  plaintiff,  or  in  defence  of  his  client ;  which  is  a  species  of  judg- 
ment by  default.  If  these,  or  any  of  them,  happen  in  actions  where  the 
specific  thing  sued  for  is  recovered,  as  in  actions  of  debt  for  a  sum  certain, 
the  judgment  is  absolutely  complete."  And,  therefore,  it  is  very  usual  in 
England  and  in  some  of  the  states  of  this  confederacy,  (though  expressly 
prohibited  under  heavy  penalties  in  Virginia,  1  R.  C.  ch.  76,  §  12,)  "in  or- 
der to  strengthen  a  creditor's  security,  for  the  debtor  to  execute  a  warrant 
of  attorney  to  some  attorney  named  by  the  creditor,  empowering  him  to 
confess  a  judgment  by  either  of  the  ways  just  now  mentioned,  (hy  nihil  di- 
cit, cognovit  actionem,  or  non  sum  informatus,)  in  an  action  of  debt  to  be 
brought  by  the  creditor  against  the  debtor  for  the  specific  sum  due  :  which 
judgnient,  when  confessed,  is  absolutely  complete  and  binding.  But  where 
damages  are  to  be  recovered,  a  jury  must  be  called  in  to  assess  them ;  un- 
less the  defendant,  to  save  charges,  will  confess  the  whole  damages  laid  in 
the  declaration."  This  is  rarely  done,  and  therefore  where  the  plaintifTs 
demand  is  indefinite,  and  a  judgment  is  entered  for  him  hynil  dicit  or  other- 
wise at  the  rules,  a  writ  of  inquiry  is  also  awarded.  The  rule  is  taken  in 
the  rule  book  in  this  abbreviated  manner,  "judgment  and  writ  of  inquiry  ;" 
but  if  made  out  at  length  and  in  proper  form,  the  entry  of  the  judgment 
would  be  "  that  the  plaintiff  recover  his  damages,  but  because  the  court 
know  not  what  damages  the  said  plaintiff  hath  sustained,  therefore  the 
sheriff  is  commanded  to  summon  twelve  honest  and  lawful  men  to  inquire 
into  the  said  damages." 

"  This  process  is  called  a  writ  of  inquiry,  in  the  execution  of  which  [in 
England]  the  sheriff  sits  as  judge,  and  tries  by  a  jury,  subject  to  nearly  the 
same  laws  and  conditions  as  the  trial  by  jury  at  nisi  prius,  what  damages 
the  plaintiff  hath  really  sustained  ;  and  when  their  verdict  is  given,  which 
must  assess  so7ne  damages,  the  sheriff  returns  the  inquisition,  which  is  en- 
tered upon  the  roll  in  manner  of  k  postea :  and  thereupon  it  is  considered, 
that  the  plaintiff  do  recover  the  exact  sum  of  the  damages  so  assessed.  In 
like  manner,  when  a  demurrer  is  determined  for  the  plaintiff  upon  an  action 
wherein  damages  are  recovered,  the  judgment  is  also  incomplete,  without 
the  aid  of  a  writ  of  inquiry."  In  Virginia,  however,  there  is  no  writ  in 
VOL.  2—41 


322  JUDGMENT,  [  BOOK  3. 

point  of  fact;  for  although  the  form  of  awarding  a  ivrit  of  inquiry  is  pre- 
aerved  in  the  entries  of  the  clerks  in  V^irginia,  yet  no  writ  ever  issues,  nor 
is  the  inquiry  made  before  the  sheriff,  as  in  England  ;  but  a  jury  is  sum- 
moned, as  in  other  cases,  and  the  inquiry  is  made  in  court:  the  only  diffe- 
rence between  the  proceedings  in  this  case,  and  in  the  case  of  a  trial,  be- 
ing that  the  jury  are  sworn  "  well  and  truly  to  inquire  of  the  plaintiff's  da- 
mages," instead  of  "  well  and  truly  to  try  the  issue  joined." 

This  method  of  ascertaining  the  amount  of  the  plaintiff's  demand,  where 
it  arises  out  of  matter  of  account  between  the  parties,  has  been  found  in 
practice  to  be  extremely  defective.  Twelve  men  constitute  a  very  unfit 
tribunal  for  the  unravelling  of  entangled  accounts,  which  had  best  be  in  all 
cases  submitted  to  one,  two,  or  three  ;  but  when  these  twelve  men  have  to 
adjust  unanimonshj  the  whole  transactions  of  many  years  within  a  {aw 
hours,  and  before  they  separate,  it  is  obvious  that  their  decisions  must  of- 
ten be  imperfect  and  erroneous.  Moreover,  where  the  ascertainment  of 
the  damages  or  amount  of  the  demand  merely  depends  upon  calculatiori, 
there  seems  to  be  no  necessity  for  a  writ  of  inquiry.  In  England,  in  such 
cases,  the  proceeding  is  peculiarly  burdensome  and  expensive,  because  the 
writ  of  inquiry  is  not  tried  at  Westminster,  but  is  sent  down  to  be  tried  be- 
fore the  sheriff  of  the  county  where  the  venue  is  laid.  Hence  a  practice  is 
now  established  in  the  courts  of  king's  bench  and  common  pleas,  in  actions 
where  judgment  is  recovered  by  default  upon  a  bill  of  exchange  or  a  pro- 
missory note,  to  refer  it  to  the  master  or  prothonotary  to  ascertain. what  is 
due  for  principal,  interest,  and  costs,  whose  report  supersedes  the  necessity 
of  a  writ  of  inquiry.*  4  T.  R.  275.  1  H.  BL  541.  It  were  much  to  be 
wished  that  accounts  were  generally  so  referred,  as  it  would  have  the  effect 
of  superseding  the  necessity  of  many  an  expensive  and  tedious  suit  in 
chancery. 

Before  the  act  1  R.  C.  ch.  128,  §  82,  corresponding  pretty  much  with 
the  8  and  9  W.  III.,  ch.  1 1,  the  penalty  in  a  bond  for  the  performance  of 
covenants  became  forfeited  upon  a  single  breach  thereof.  But  now  by  the 
8th  section  of  that  statute,  though  the  plaintiff  is  permitted  to  enter  up  judg- 
ment for  the  whole  penalty,  it  can  only  stand  as  a  pecurity  for  the  dama- 
ges actually  sustained.  Mr.  Chitty  says  the  plaintiff  must  then  proceed  by 
suggesting  breaches  on  thfe  roll,  of  which  it  is  usual  to  give  a  copy  to  the 
defendant,  with  notice  of  inquiry  for  the  sittings  or  assizes ;  and  the  dam- 
ages are  assessed  upon  the  writ  in  the  usual  way  by  a  jury  ;  and  upon  pay- 
ment of  them,  execution  upon  the  judgment  entered  up  is  stayed,  the  judg- 
ment itself  remaining  as  a  security  against  further  breaches.  See  Tidd.  8 
ed.  632.  This  statute  does  not  extend  to  a  bond  conditioned  for  the  pay- 
ment of  a  sum  certain  at  a  day  certain,  as  a  post  obit  bond,  2  B.  &  C.  82 ; 
nor  a  common  money  bond,  4  Ann.  c.  16.  s.  l-'j.  1  Saund.  58  ;  nor  a  war- 
rant of  attorney  payable  by  instalments,  3  Taunt.  74.  5  Taunt.  264  ; 
though  a  bond  be  also  given,  2  Taunt.  195  ;  nor  to  a  bail-bond,  2  B.  &,  P. 
4-16;  nor  a  petitioning  creditor's  bond.  3  East,  22.  7  T.  11.  300.  But 
all  other  bonds,  either  for  payment  of  money  by  instalments,  or  of  annui- 
ties, or  for  the  performance  of  any  covenants  or  agreements,  are  within  the 
statute.  See  8  T.  R.  126.  6  East,  550.  2  Saund.  187,  n.  (c.)  3  M.  & 
S.  156.  1  Chitty  on  PI.  507.  Where  the  parties  in  a  bond  agree  that  the 
sum  mentioned  to  be  paid  on  a  breach  of  any  of  its  covenants,  shall  be  ta- 
ken to  be,  and  be  considered  as,  stipulated  damages,  the  case  is  not  then 
within  the  statute,  and  the  whole  sum  becomes  at  once  payable,  according 
to  the  terms  of  the  agreement ;  for  where  the  precise  sum  is  the  ascertain- 
ed damage,  the  jurv  are  confined  to  it.  See  4  Burr.2225.  2  B.  &  P.  346. 
1  Camp.  78.     2  T.  R.  32.     Holt.  Rep.  43. 

•  See  also  2  San  t).  107.    7  T.  11.116.    Eac.  Abr.  Uain.  L.    8  T.  R.  3?J.    5  T.  K.  G7.     IT.  I1.1D3. 
3  Julin.  Rep.  lO'J. 


ciiAP.  18.]  COSTS.  823 

"  Final  judgments  arc  such  as  at  once  put  on  ond  to  tlie  action,  by  dc- 
clarluir  that  tlie  plaintiff  has  either  entitled  hiniseltj  or  has  not,  to  recover 
the  remedy  he  sues  for.  In  which  case,  if  the  judirmont  be  for  the  plain- 
tiff, it  is  also  considered  that  the  defendant  be  amerced,  for  his  wilful  delay 
of  justice  in  not  immediately  obeying  the  writ  by  rendering  the  plaintiff  liis 
due  ;  or  be  taken  up,  capiatur,  till  he  pays  a  fine  for  the  public  misdemes- 
iior  which  is  coupled  with  the  private  injury,  in  all  cases  of  force,  of  false- 
hood in  denying  his  own  deed,  or  unjustly  claiming  property  in  replevin,  or 
of  contempt  by  disobeying  the  command  of  the  king's  writ  or  the  express 
prohibition  of  any  statute."  This  part  of  the  entry  of  the  judgment  is  now, 
however,  but  matter  of  form,  there  being  in  fact  no  amercement  or  fine  in 
any  case  whatever.  The  fine  was  abolished  in  England  by  a  statute  of 
William  III.,  which  was  never  in  force  with  us.  Yet  it  seems  to  have  been 
as  effectually  abolished  in  practice,  in  Virginia,  as  if  there  had  been  a  sta- 
tutory enactment.  In  like  manner,  when  the  plaintiff  fails  in  his  suit,  and 
judgment  is  given  for  the  defendant,  the  form  is,  that  "  it  is  considered  ih^t 
the  plaintiff  for  his  false  clamour  be  amerced,  [or  in  mercy,  according  to 
the  accustomed  form,]  and  that  the  defendant  go  thereof  without  day  ;  that 
is,  without  any  further  continuance  or  adjournment :  the  writ  commanding 
his  attendance  being  now  fully  satisfied,  and  his  innocence  established. 
This  amercement  is  entirely  nominal,  as  in  the  case  of  the  defendant:  but 
for  the  prevention  of  vexatious  and  groundless  actions,  it  is  enacted,  that 
whenever  the  plaintiff  is  nonsuited,  he  shall  pay  to  the  defendant  five  dol- 
lars for  his  nonsuit,  besides  his  costs.     1  R.  C.  ch.  128,  §  7'2. 

"  Tlius  much  for  judgments  ;  to  which  costs  are  a  necessary  appendage ; 
it  being  now  as  well  the  maxim  of  ours  as  of  the  civil  law,  that  '  victus  vic- 
tori  in  expensis  condemnandus  est : '  though  the  common  law  did  not  profes- 
sedly allow  any,  the  amercement  of  the  vanquished  party  being  his  only 
punishment."     These  costs  are  taxed  by  the  clerk  of  the  court. 

The  law  of  costs,  as  now  existing  in  Virginia,  will  be  found  in  1  R.  C. 
ch.  128,  §  23,  &c.  to  32  ;  and  acts  of  1823,  ch.  28,  sec-  4.  Upon  parts  of 
the  first  of  these  acts  some  remarks  may  be  necessary.     It  provides, 

Sec.  23.  That  in  all  cases  at  law,  except  motions,  where  judgments  shall 
be  given  for  the  defendant,  or  appellee,  he  shall  recover  his  costs  against 
the  plaintiff  or  appellant,  and  have  execution  for  the  same  ;  and  where  in 
such  cases  the  plaintiff  prevails  he  shall  recover  costs  against  the  defendant 
or  appellee,  unless  otherwise  provided  by  law.     Here  note, 

1.  The  party  prevailing  in  such  cases  has  a  right  to  his  costs,  the  court 
having  no  discretion  on  the  subject.     1  H.  &  M.  499. 

2.  But  where  a  judgment  is  reversed  because  of  an  error  in  favour  of  the 
appellant,  the  appellee  has  judgment  for  costs,  for  he  is  the  party  substan- 
tially prevailing.     1  W.  381.     2  H.  &  M.  589.     Gil.  230. 

3.  This  section  does  not  apply  to  motions  even  in  a  court  of  law;  for, 
by  section  24,  ou  all  motions  the  court  may  give  or  refuse  costs,  unless 
where  it  is  otherwise  by  law- 
Sec.  25.  In  any  cause,  whether  at  law  or  in  equity,  and  whether  appel- 
late or  original,  the  judgment  or  decree  is  rendered  against  executors  or 
administrators,  whether  plaintiffs  or  defendants,  for  costs,  in  the  same  man- 
ner as  costs  are  taxed  against  a  person  suing  or  sued  in  his  own  right.  But 
they  are  to  be  levied  only  of  the  estate  of  the  decedent,  except  where  in  the 
case  of  an  executor  plaintiff  the  court  shall  certify  as  their  opinion,  tliat  in 
the  prudent  discharge  of  his  official  duty  he  ought  not  to  have  brought  the 
action;  and  even  then  the  judgment  shall  be  de  bonis  testator  is  si,  S^  si 
non  de  bonis  propriis.     See  act  of  February,  1823,  ch.  28,  §  4. 

Even  before  this  act  where  an  executor  brought  assumpsit,  though  the  as- 
sumpsit was  laid  to  the  executor  himself,  the  judgment  was  of  the  goods  of 


824  COSTS.  [book  3. 

the  testator  if  to  be  had,  and  only  in  default  of  them  of  the  executor's  own 
goods.     1  VV.  1-38.     2  H.  &  M.  3G1. 

This  section  contains  a  proviso  that  it  shall  not  be  "  construed  to  take 
away  or  abridge  the  discretion  of  a  court  of  equity  over  the  subject  of  costs." 
This  discretion  "is  pretty  large,  hut  prima  facie  the  party  who  fails  pays 
costs."  If  he  would  be  relieved  from  them,  he  must  show  that  there  are 
circumstances  in  the  case  sufficient  to  prompt  the  exercise  of  this  discre- 
tion in  his  favour.     See  11  Vez.  462,  3.     1  John.  C.  C.  182. 

The  doctrine  of  costs  on  granting  new  trials,  which  forms  the  subject  of 
the  27th  section  of  the  act,  has  been  already  treated  of. 

Sec.  28.  This  section  provides,  that  where  in  suits  at  law,  or  in  equity, 
the  plaintiff  resides  out  of  the  commonwealth,  his  suit  shall  be  dismissed 
unless  he  gives  security  for  costs  within  sixty  days  after  notice  given  to 
him  or  his  attorney  in  fact  (or  at  law,  Virg.  Ca.  123.  4  Mun.  365,)  that 
security  is  demanded.  The  notice  is  usually  given  by  rule,  either  in  court 
or  in  the  office,  and  such  rule  without  further  service  is  considered  as  no- 
tice. The  security  is  to  be  filed  with  the  clerk,  and  is  either  entered  by 
filing  a  written  undertaking  or  assumpsit  to  pay  costs,  or  (which  is  most 
usual)  an  entry  of  the  engagement  is  made  in  court  by  direction  of  the 
plaintiff's  attorney,  or  upon  the  security's  appearing  and  undertaking  that 
he  will  pay  all  costs  that  may  be  awarded  against  the  plaintiff,  and  also  all 
officers'  fees.  Moreover,  no  clerk  is  bound  to  perform  official  service  for  a 
non-resident  plaintiff  until  his  fees  are  secured  to  him,  whether  the  defen- 
dant has  demanded  security  for  costs  or  not. 

If  a  question  arises  as  to  the  residence  of  the  plaintiff,  the  onus  prob audi 
is  upon  him  to  prove  his  residence  in  the  commonwealth. 

Under  these  clauses  it  has  been  decided,  that  though  the  rule  expires, 
(i.  e.  though  the  sixty  days  have  passed,)  yet  if  security  be  tendered  in 
court  at  the  first  calling  thereafter,  it  ought  to  be  received,  and  the  suit 
should  not  be  dismissed.  4  Mun.  364.  But  if  not  given  until  then,  the 
plaintiff  cannot  compel  the  defendant  to  go  to  trial,  (for  he  was  not  bound 
to  make  ready  for  trial,  as  security  was  not  given.)  Gil.  123.  Yet  it  is  no 
cause  for  a  continuance  on  his  own  part. 

Where  security  for  costs  has  been  given,  the  usual  course,  I  believe,  has 
been  to  distrain  the  securities  for  the  officers'  fees,  in  case  of  refusal  to  pay. 
Where  judgment  goes  against  the  plaintiff  for  the  costs,  if  the  security  re- 
fuses or  fails  to  pay,  two  remedies  are  used.  The  defendant  may  either 
have  an  order  that  he  pay  the  amount,  and  in  case  of  failure  enforce  it  by 
rule  for  an  attachment;  or  he  may  sue  out  a  scire  facias  reciting  the  un- 
dertaking and  the  judgment,  and  calling  on  the  defendant  to  shew  cause 
why  judgment  should  not  be  entered  against  him  for  the  amount.  Here- 
upon judgment  may  be  entered  in  the  same  manner  as  in  other  cases  of 
scire  facias,  and  execution  may  then  issue  accordingly.  The  former  pro- 
ceeding seems,  however,  most  convenient,  but  I  conceive  the  rule  for  an 
attachment  is  irregular  until  an  order  has  been  entered  directing  the  pay- 
ment, and  that  order  has  been  duly  served  upon  the  security. 

Where  there  are  two  plaintiffs,  security  for  costs  cannot  be  demanded  if 
either  resides  in  the  commonwealth.     See  1  E.  431. 

When  the  cause  is  called  for  trial  it  is  too  late  to  demand  security  for 
costs.     See  5  E.  333. 

Where  the  party  resides  in  Virginia  at  the  commencement  of  the  suit 
and  moves  out,  security,  I  conceive,  may  well  be  demanded  ;  for  the  act 
says,  "  every  action  commenced  or  prosecuted  in  the  name,"  Sec.  Quaere. 
See  4  Mun.  364. 

While,  however,  the  law  requires  security  for  the  costs  from  absent  de- 
fendant:', it  manifests  on  the  other  hand  a  proper  liberality  towards  poor 


CHAP.  18.]  COSTS.  325 

persons,  whose  poverty  disables  them  from  prosecuting  their  demands  for 
justice.  It  is  accordingly  provided,  1  R.  C.  ch.  1-24,  that  paupers  who  have 
cause  of  action,  may  prosecute  the  same>  and  shall  have  the  benefit  of  all 
process,  and  of  the  services  of  the  officers  of  the  court,  and  of  counsel, 
without  paying  any  thing  therefor.  Leave  to  sue  in  forma  pauperis  is  al- 
lowed on  petition  stating  the  facts,  and  by  the  English  practice,  under  a 
late  statute,  the  petitioner  must  swear  that  he  is  not  worth  £,o  over  and  above 
his  wearing  apparel,  and  the  matter  of  his  demand  in  the  suit.  It^must  be 
also  accompanied  by  the  favorable  opinion  of  counsel,  as  to  his  case.  Tidd's 
practice,  68,  69.  Similar  regulations  are  enacted  as  to  suits  for  freedom 
by  negroes  or  others,  who  allege  that  they  are  illegally  held  in  slavery.  1 
R.  C.  ch.  124,  §  4,  5.  A  pauper,  however,  can  recover  costs  though  he 
pays  none,  for  they  are  recovered  for  the  benefit  of  the  officers,  who  are  not 
bound  to  give  their  services  to  his  antagonist,  although  they  were  bound  to 
give  them  to  him. 

It  is  material  to  observe,  with  respect  to  the  recovery  of  costs,  that  with 
us  if  the  defendant  pleads  several  pleas,  one  of  which  is  found  for  him  and 
the  other  against  him,  he  recovers  the  general  costs  of  the  action,  because 
though  he  has  failed  on  one  plea,  yet  he  has  on  the  whole  barred  the  plain- 
tiff's demand.  The  case  of  an  executor  defendant  seems  to  be  peculiar, 
and  the  authorities,  indeed,  in  some  degree  conflicting  Thus  : 
I  Where  an  executrix  pleaded  —  1 ,  non  assumpsit — 2,  ne  unques  ex. — 3,  plene 
administravit,  and  issues  on  the  first  pleas  were  found  for  plaintiff,  and  on 
the  last  for  defendant,  the  defendant  had  judgment  for  general  costs  of  the 
trial.  1  Bar.  &  Aid.  253.  See  also  a  case  4  Taun.  1.35.  Yet  see  12  E. 
252,  where  on  non  assumpsit,  plene  ad.  prceter,  and  plene  ad.  pleaded,  and 
the  defendant  succeeded  on  the  plea,  ot^  plene  ad. ;  yet  the  plaintiff  had 
judgment  for  costs. 

This  subject  has  also  come  under  the  examination  of  our  general  court 
in  the  case  of  Timberlake  vs.  Benson,  2  Virginia  Cases,  348,  in  which  the 
following  results  of  the  deliberation  of  the  court  are  laid  dowji  as  the  go- 
verning principles  of  these  cases.  They  have  not  yet  undergone  the  su- 
pervision of  the  tribunal  in  the  last  resort. 

1.  "  When  an  administrator  defendant  pleads  the  single  plea  of  'fidhj 
administered,^  and  the  issue  is  found  for  him,  the  plaintiff  ought  to  have  a 
judgment  for  debt,  and  costs  when  assets,  Sfc.  and  the  defendant  ought  to 
have  a  judgment  against  the  plaintiff  for  the  general  costs  of  the  action. 

2.  "  When  defendant  administrator  pleads  '  non  assumpsit'  and  'fully 
administered,'  and  the  first  is  found  for  the  plaintiff,  and  the  second  for  the 
defendant,  the  judgment  ought  to  be  for  the  plaintiff,  for  his  debt  and  costs, 
quando,  &c.  and  the  defendant  ought  to  have  judgment  for  the  separate 
costs  of  that  issue. 

3.  "  If  the  defendant  pleads  both  pleas,  and  the  plaintiff  declines  reply- 
ing to  the  plea  of  fully  administered,  or  having  replied  to  it,  withdraws  it 
without  subjecting  the  defendant  to  any  costs,  and  the  first  issue  is  with 
the  plaintiff,  the  plaintiff  ought  to  have  a  judgment  for  his  debt  and  costs, 
quando,  &,c.  and  the  defendant  is  not  entitled  to  a  judgment  for  any  costs. 

4.  "  If  a  plaintiff  having  replied  to  the  plea  of  'fully  administered,'  af- 
terwards withdraws  his  replication  by  consent  of  the  court,  the  defendant 
may  at  that  time  object  to  it,  unless  on  the  terms  of  the  plaintiff's  paying 
the  costs  occasioned  by  that  replication.  If  he  neglects  to  do  so,  it  will  be 
construed  into  an  admission  that  he  is  not  entitled  to  recover  any,  and 
there  will  be  no  judgment  at  any  future  term  for  his  separate  costs,  if  the 
first  issue  on  the  plea  of  non  assumpsit  is  found  for  the  plaintiff." 

For  the  prevention  of  trifling  and  vexatious  suits,  it  is  enacted,  1  R.  C. 
ch.  128,  §  20,  that  if  the  damages  found  by  the  jury  in  actions  of  assault 


326  AUDITA  QUERELA.  [  BOOK  3. 

and  battery  nnd  slander  are  under  the  sum  of  $16.66  in  a  superior  court, 
or  the  sum  of  $6.6i3  in  a  county  court,  the  plaiiitifl'  shall  recover  no  costs. 
And  moreover,  where  the  amount  of  the  plaintiff"'s  recovery  is  under  $6.66, 
no  matter  in  what  court,  in  actions  of  trespass  or  trespass  quare  clausum, 
case,  covenant,  or  debt  on  bond  to  secure  the  performance  of  covenants,  he 
shall  recover  no  more  costs  than  damages,  unless  the  court  shall  certify  that 
the  trespass  was  malicious,  or  in  the  case  of  trespass  quare  clausum,  that  the 
right  of  freehold  might  have  been  in  question,  or  in  the  actions  of  case,  co- 
venant, and  debt,  that  the  action  was  neither  frivolous  nor  vexatious.  More- 
over in  trespass,  assault  and  battery,  false  imprisonment,  and  ejectment,  if 
one  defendant  be  acquitted,  he  shall  recover  his  costs  though'  the  others 
be  found  guilty  ;  unloss  the  court  shall  certify  that  there  was  reasonable 
cause  for  making  him  a  defendant,  and  shall  order  it  otherwise. 

"  Mier  judgment  is  entered,  execution  will  immediately  follow,  unless  the 
party  condemned  thinks  himself  unjustly  aggrieved  by  any  of  these  pro- 
ceedings, and  then  he  has  his  remedy  to  reverse  them  by  several  writs  in 
the  nature  of  appeals,  which  we  shall  consider  in  the  succeeding  chapter." 


4w 


CHAPTER  XIX. 

OF  PROCEEDINGS  IN  THE  NATURE  OF  APPEALS. 


"  Proceedings  in  the  nature  of  appeals  from  the  proceedings  of  the 
courts  of  law  are  of  various  kinds  :  according  to  the  subject-matter  in 
which  they  are  concerned." 

Of  these  Mr.  Blackstone  mentions  four  kinds  :  tlie  attaint,  which  no 
longer  exists  even  in  England,  since  the  6th  of  Geo.  IV  ;  the  writ  of  de- 
ceit to  reverse  a  judgment  in  a  real  action,  obtained  by  fraud  ;  the  audita 
querela  ;  and  the  writ  of  error.  The  two  former  of  these  remedies  are  not 
practically  in  existence  with  us,  and  will  not,  therefore,  form  subjects  of  re- 
mark here.  The  student  who  desires  to  gratify  a  laudable  curiosity  as  to 
these  venerable  but  obsolete  remedies  of  the  old  common  law,  will  find  a 
sufficient  account  of  them  in  the  commentaries. 

The  audita  querela  is  also  entirely  disused  in  Virginia,  yet  as  it  is  a  reme- 
dy that  under  certain  circumstances  might  be  resorted  to,  it  may  not  be 
amiss  to  insert  here  Mr.  Blackstone's  short  account  of  it. 

III.  "An  audita  querela  is  where  a  defendant,  against  whom  judgment 
is  recovered,  and  who  is,  therefore,  in  danger  of  execution,  or  perhaps  ac- 
tually in  execution,  may  be  relieved  upon  good  matter  of  discharge,  which 
has  happened  since  the  judgment :  as  if  the  plaintiff  hath  given  him  a  gen- 
eral release  ;  or  if  the  defendant  hath  paid  the  debt  to  the  plaintifT,  without 
procuring  satisfaction  to  be  entered  on  the  record.  In  these  and  the  like 
cases,  wherein  the  defendant  hath  good  matter  to  plead,  but  hath  had  no 
o^||g|tunity  of  jdcading  it,  (either  at  the  beginning  of  the  s\i\\ ,  ox  puis  dar- 
rein continuance,  which,  as  was  shewn  in  a  former  chapter,  must  always  be 
before  judgment,)  an  audita  querela  lies,  in  the  nature  of  a  bill  in  equity,  to 
be  relieved  against  the  oi)prcssion  of  the  plaintiff.  It  is  a  writ  directed  to 
the  court,  stating  that  the  complaint  of  the  defendant  hath  been  heard,  au- 
dita querela  defendentis,  and  then  setting  out  the  matter  of  the  complaint, 
*.  it  at  length  enjoins  the  court  to  call  the  parties  before  them,  and,  having 
lieard  their  allegations  and  proofs,  to  cause  justice  to  be  done  between 
them.  It  also  lies  for  bail,  when  judgment  is  obtained  against  (hem  by  scire 
facias  to  answer  the  debt  of  their  ])rincipal,  and  it  liappens  afterwards  that 
the  original  judgment  against  their  principal  is  reversed:  for  here  the  bail, 
after  judgment  had  against  them,  have  no  opportunity  io  plead  this  special 


CHAP.  19.]  WRIT  OF  ERROE.  327 

matter,  and  tlierefore  they  sliall  have  redress  by  audita  querela;  which  is  a 
writ  of  a  most  remedial  nature,  and  seems  to  have  been  invented,  lest  in 
any  case  there  should  be  an  oppressive  defect  of"  justice,  where  a  party  who 
hath  a  good  defence  is  too  late  to  make  it  in  the  ordinary  forms  of  law.  But 
the  indulgence  now  shewn  by  the  courts  in  granting  a  summary  relief  upon 
motion,  in  case  of  such  evident  oppression,  has  almost  rendered  useless  the 
writ  audita  querela,  and  driven  it  quite  out  of  practice." 

Chief  Justice  Eyre  indeed  has  said  "  I  take  it  to  be  the  modern  practice 
to  interpose  in  a  summary  way,  in  all  cases  where  the  party  would  be  enti- 
tled to  relief  on  an  audita  querela."  1  Bos.  &  Pul.  4'28.  In  general  the 
courts  will  not  put  the  defendant  to  the  trouble  nnd  expense  of  an  audita, 
querela,  but  will  relieve  him  in  a  summary  way  on  motion,  4  Burr.  2287; 
see  1  John.  50  ;  but  where  the  ground  of  his  relief  is  a  release,  when  there 
is  some  doubt  about  the  execution,  or  some  matter  of  fact  which  cannot  be 
clearly  ascertained  by  affidavit,  and  therefore  proper  to  be  tried,  the  court 
has  driven  the  defendant  to  his  audita  querela.  1  Salk.  93,  264.  1  Ld. 
Raym.  439.  12  Mod.  240.  2  Ld.  Raym.  1295.  2Stra.  1198.  See  also 
5  Taunt.  501.  2  Marsh.  .37.  But,  indeed,  the  indulgence  which  of  late 
has  been  shewn  by  courts  of  law  in  granting  summary  relief  upon  motion 
in  most  cases  of  evident  oppression,  for  which  the  only  remedy  was  for- 
merly by  audita  querela,  has  occasioned  this  remedy  now  to  be  very'  ratejy 
resorted  to,  even  in  England.  In  Virginia  it  is  entirely  superseded  either 
by  the  remedy  by  motion,  or  by  application  to  a  court  of  equity  by  bill  of 
injunction  ;  a  remedy  much  more  convenient  and  complete,  since  it  arrests 
the  execution  upon  the  judgment  until  the  matter  in  question  is  tried  ; 
whereas  the  audita  querela  does  not  suspend  the  judgment  unless  the  party 
sues  out  also  a  supersedeas. 

The  methods  of  redress  afforded  by  the  law  of  Virginia  for  erroneous 
judgments  of  tribunals  inferior  to  the  supreme  court  of  appeals  are  of  three 
kinds:  the  writ  of  error;  the  supersedeas  ;   and  the  appeal. 

"  A  writ  of  error  lies  for  some  supposed  mistake  in  the  proceedings  of  a 
court  of  record.  The  writ  of  error  only  lies  upon  matter  of  law  arising 
upon  the  face  of  the  proceedings;  so  that  no  evidence  is  required  to  sub- 
stantiate or  support  it :  there  being  no  method  of  reversing  an  error  in  the 
determination  o(  facts,  but  by  a  new  trial,  to  correct  the  mistakes  of  the 
former  verdict. 

"Formerly,  the  suitors  were  much  perplexed  by  writs  of  error  brought 
upon  very  slight  and  trivial  grounds,  as  mis-spellings,  and  other  mistakes 
of  the  clerks,  all  of  which  might  be  amended  at  the  common  law,  while  all 
the  proceedings  were  in  paper;  for  they  were  then  considered  as  only  in 
fieri,  and  therefore  subject  to  the  control  of  the  courts.  But,  when  once 
the  record  was  made  up,  it  was  formerly  held,  that  by  the  common  law  no 
amendment  could  be  permitted,  unless  within  the  very  term  in  which  the 
judicial  act  so  recorded  was  done  :  for  during  the  term  the  record  is  in  the 
breast  of  the  court ;  but  afterwards  it  admitted  of  no  alteration.  But  Bwow 
the  courts  are  become  more  liberal  ;  and,  where  justice  requires  it,  will  al- 
low of  amendments  at  any  time  while  the  suit  is  depending,  notwithstand- 
ing the  record  be  made  up,  and  the  term  be  past.  For  they  at  present  con- 
sider the  proceedings  as  in^eri,  till  judgment  is  given  ;  and  therefore,  that 
till  then,  they  have  power  to  permit  amendments  by  the  common  law  ;  but 
when  judgment  is  once  given  and  enrolled,  no  amendment  is  permitted  in 
any  subsequent  term.  [1  H.  &,  M.  25.]  Mistakes  are  also  effectually 
helped  by  the  statute  of  amendment  and  Jeofails;  so  called,  because  when 
a  pleader  perceives  any  slip  in  the  form  of  his  proceedings,  and  acknow- 
ledges such  error,  (Jeofaile,)  he  is  at  liberty  by  those  statutes  to  amend  it; 
which  amendmcut  is  seldom  actually  made,  but  the^benefit  of  the  acts  is 


328  ERROR  CORAM  NOBIS.  f  BOOK  3. 

nttaincd  by  the  courts  ovorlooking  the  exception."  I  have  ah-eady  devot- 
ed to  the  subject  of  Jeofiiils  as  much  nttention  as  is  compatible  with  the  na- 
ture of  our  design.  The  existence  of  these  statutory  provisions  sufficiently 
evinces  that  for  the  correction  of  tlie  errors  in  the  proceedings  or  judgment 
of  the  court,  the  law  has  liberally  provided  remedies  for  the  party  injured  ; 
insomuch  that  it  has  been  found  necessary  rather  to  restrain  the  liberality 
of  the  common  law  heroin  than  to  extend  its  provisions. 

These  remedies  are  furnished  for  the  correction  of  such  errors  as  are 
clerical,  and  of  such  as  are  regarded  to  be  the  errors  of  the  court  itself. 
For  the  former,  the  writ  of  error  coram  nobis  is  the  proper  remedy  ;  for  the 
latter,  the  writ  of  error,  properly  so  called  ;  to  which  arc  added  by  our  laws, 
the  supersedeas  and  appeal.  The  nature  of  these  must  be  explained  in 
succession. 

1.  The  writ  of  error  cora77i  nobis.  This  is  a  proceeding  which  lies  to 
the  same  court  where  the  cause  is  tried  :  whereas  the  writ  to  correct  errors 
in  ihe  jud foment  of  that  court  cannot  be  brought  before  the  same  court,  but 
its  object  is  to  remove  the  cause  to  a  higher  tribunal.  For  it  would  be  ab- 
surd to  appeal  to  the  same  court  from  an  error  in  its  own  judgment.  But 
as  the  writ  of  error  coram  nobis  does  not  question  the  judgment  of  the  court, 
but  only  alleges  some  defect  in  the  execution  of  the  process,  or  some  cler- 
ical misprision  or  mistake,  or  some  error  in  the  proceedings,  arising  from 
a  fact  not  appearing  upon  the  face  of  them,  (as  where  a  judgment  is  ren- 
dered against  a  party  after  his  death,)  there  is  no  absurdity  in  permitting  it 
to  be  brought  before  the  same  court  that  tried  the  cause.  Thus,  if  the 
clerk  enters  up  a  judgment  as  confirmed  against  the  appearance  bail,  where- 
as, in  truth  and  in  fact,  he  had  filed  a  recognizance  of  special  bail,  and 
had  set  the  office  judgment  aside,  which,  however,  the  clerk  omitted  to  en- 
ter in  the  record,  this  writ  of  error  coram  nobis,  (sometimes  called  a  writ  of 
error  in  fact,)  lies  to  correct  the  procedure  :  and  upon  the  fact  appearing., 
the  court  proceeds  to  reverse  the  judgment  against  the  appearance  bail  up 
to  the  point  where  the  error  was  committed,  and  placing  the  cause  in  the 
state  in  which  it  would  have  been,  had  the  fact  been  properly  entered  on  the 
record,  sends  it  back  for  further  proceedings.  So  where  on  a  bill  in  the 
penalty  of  146,000  pounds  of  tobacco,  with  condition  to  pay  73,000  pounds 
of  sound  merchantable  tobacco  inspected  at  Falmouth,  Fredericksburg,  and 
Port  Royal,  a  judgment  by  nihil  (licit,  upon  the  defendant's  waiving  his 
plea,  was  entered  by  the  clerk  for  the  tobacco  generally,  without  specifying 
the  inspection ;  this  was  deemed  a  clerical  error,  and  proper  to  be  correct- 
ed by  writ  of  error  coram  nobis.  And  the  court  thereupon  reversed  the 
judgment,  and  proceeding  (as  is  always  the  case)  to  give  such  judgment 
as  ought  to  have  been  given,  they  entered  it  for  tobacco  of  those  particular 
inspecjions.  2  W.  130.  In  like  manner  where  there  was  an  office  judg- 
ment on  a  promissory  note  against  two  defendants,  one  of  whom  was  an 
infant  at  the  time,  (not  only  of  making  the  note,)  but  of  confirming  the 
judgment,  this  was  proper  matter  for  this  writ ;  and  the  court  set  aside  the 
proceedings  as  far  as  the  declaration,  and  sent  the  cause  back  to  be  fur- 
ther proceeded  in  from  that  point.     2  Ran.  174. 

This  writ,  it  seems,  like  every  other  writ  of  error,  except  for  treason  and 
felony,  was  at  common  law  grantable  ex  debito  justitia,  and  still  continues 
so,  as  it  is  not  within  the  provisions  of  our  act.  1  R.  C.  ch.  69,  §  55,  56, 
&c.  64,  §  11.  2  Saun.  101.  It  may  therefore  be  sued  out  without  ap- 
plication to  a  judge.  See  2  Ran.  174.  It  is,  however,  rarely  prosecuted, 
as  the  object  of  it  might,  in  many  cases,  be  obtained  by  mere  motion,  (2 
W.  130,)  even  before  the  late  act.  Generally,  however,  if  the  application 
be  made  after  final  judgment,  it  would  seem  from  principle,  and  from  the 
case  of  1  H.  &  M.  25,  that  a  mere  motion  will  not  be  regular  unless  the 


CHAP.  19.]  WRIT  OF  ERROR.  329 

case  comes  within  the  provisions  of  the  law  which  are  hereafter  to  be  ex- 
amined. 1  R.  C.  oh.  128,  §  108,  109.  See  2  Saun.  101,  as  to  practice  in 
C.  B.  For  the  writ,  assignment  of  errors,  and  proceedings  in  a  writ  of  er- 
ror coram  nobis,  see  2  Lilly's  Ent.  490.  Tidd's  Prac.  Forms,  485,  490. 
The  assignment  of  errors  concludes  with  a  verification.  1  Burr.  410. 
Carth.  367.     2  Saun.  101,  p. 

There  seems  to  be  occasionally  some  difficulty  in  deciding  whether  an 
error  is  to  be  regarded  as  clerical,  or  as  in  the  judgment  of  the  court,  as 
appears  from  the  case  in  2  W.  1-30,  and  that  in  1  Ran.  26.  Those  only 
are  said  to  be  clerical  errors  which  are  made  by  the  clerk,  which  depend 
only  upon  a  comparison  and  calculation  to  be  made  by  him,  and  may  be 
safely  reformed  by  a  reference  to  other  statements  contained  in  the  pro- 
ceedings. See  1  Ran.  25.  When,  however,  the  error  is  considered  cleri- 
cal, the  proper  remedy  is  either  by  motion  or  by  writ  of  error  coram  nobis. 
The  remedy  by  motion  is  now  very  much  enlarged  by  the  108th  section  of 
ch.  128,  1  R.  C. ;  for  although  it  is  decided  that  they  were  not  intended  to 
enlarge  the  subjects  amendable,  1  Ran.  25,  yet,  as  they  permit  amend- 
ments after  final  judgment,  they  have  very  much  extended  the  scope  of  the 
motion,  and  diminished  the  necessity  of  the  writ  of  error  coram  nobis  :  and 
though  it  was  decided  in  Gordon  vs.  Frazier,  2  W.  130,  that  costs  should 
not  be  awarded  for  a  party  who  brings  the  writ  of  error  where  a  motion 
would  lie,  yet  the  law  no  longer  leaves  a  discretion  as  to  costs  in  any  actidh 
at  law,  but  the  prevailing  party  must  recover  them.  Hence,  a  party  may 
now  freely  choose  which  remedy  he  pleases,  if  both  lie. 

The  108th,  109th,  and  110th  sections  of  the  act  above  quoted  contain 
also  some  very  salutary  provisions.  The  studeut  is  referred  to  them  par- 
ticularly, and  will  observe,  that  when  the  error  complained  of  is  in  the  judg- 
ment of  the  court,  it  is  not  within  either  of  these  sections,  and  therefore 
can  neither  be  amended  upon  motion,  nor  can  the  excess  of  the  judgment 
rendered  be  released.  In  these  cases  the  party's  remedy  in  Fingland  for 
the  correction  of  the  error  was  by  writ  of  error.  In  Virginia,  it  is  either  by 
writ  of  error,  appeal,  or  supersedeas,  of  which  it  behoves  us  to  say  some- 
thing. I  shall  here,  however,  speak  of  writs  of  error  and  supersedeas  in 
some  measure  indiscriminately,  and  afterwards  say  something  of  the  super- 
sedeas particularly.  Appeals  will  also  be  considered  in  some  measure  dis- 
tinctly, though  much  that  will  be  said  as  to  the  other  two  remedies  will  ap- 
ply to  them. 

Of  writs  of  error.  Though  grantable  at  common  law  ex  debito  justiticB,* 
to  correct  the  errors  of  an  inferior  court  in  a  civil  proceeding,  they  are  so  no 
longer,  but  must  be  allowed  by  the  superior  court  whose  appellate  jurisdic- 
tion is  invoked,  or  by  some  judge  of  such  court :  and,  indeed,  any  judge  of 
the  general  court  may  grant  a  writ  of  error  or  supersedeas,  though  the  in- 
ferior court  is  not  within  his  circuit.!  See  1  R.  C.  ch.  69,  §  58.  cff.  64,  § 
II.  It  never  can  be  granted  in  a  suit  at  law  until  final  judgment  in  the 
superior  court,  §  55,  but  it  will  lie  even  nfter  tlie  judgment  has  been'^execut- 
ed,  (1  W.  116,)  and  the  money  may  be  recovered  back  by  assumpsit.  Be- 
fore it  issues,  the  party  praying  it  must  enter  into  bond  with  security,  in  a 
penalty  to  be  fixed  by  the  judge,  and  usually  double  the  amount  of  the 
judgment  below,  with  condition  to  pay  the  amount  of  recovery,  and  all 
costs  and  damages  awarded,  in  case  the  judgment  or  sentence  be  affirmed. t 

Where  several  appeal,  bond  and  security  given  by  any  party  will  suffice; 

*  See  2  Saund,  101.    1  Tidd,  1051.     Sed  vide  il)id,  1074. 

tThe  act  of  1830,  ch.  11,  lias  made  some  changes  in  the  law  relative  to  appeals,  writs  of  error,  &c. 


2  L.  U.  6.  64. 

VOL.  2 — 42 


33t)  WRIT  OF  ERROR.  [  book  3. 

and  now,  indeed,  if  executed  by  any  person,  together  with  another  solvent 
person  as  security,  it  will  suffice,  though  none  of  the  parlies  execute  it. 
See  4  Mun.  104,  S'23.  5  Mun.  197,  which  were  decided  before  the  revisal 
of  1819,  when  the  law  was  extended.  And  even  if  the  obligee  or  obligees 
or  part  of  them  be  dead,  the  bond  is  good,  and  may  be  proceeded  on  as  if 
he  had  been  alive  when  it  was  executed,  and  then  had  died.  §  59.  These 
provisions  apply  not  only  to  writs  of  error,  but  to  the  cases  of  appeals  and 
supersedeas.  The  bond,  if  an  appeal  is  allowed  in  court,  should  not  be  giv- 
en in  the  clerk's  office  after  the  rising  of  the  court,  but  in  court.  6  Mun. 
397.  4  Ran.  460.  In  the  case  here  cited,  thirty  days  were  given  for  exe- 
cution of  the  bond,  and  this  was  decided  to  be  erroneous  in  the  case  of  an 
appeal  from  a  judgment  at  law.  In  consequence,  however,  of  the  practice 
having  been  long  established  in  the  courts  of  chancery,  it  is  not  so  in  an 
appeal  from  a  decree  in  chancery.      1  Ran.  413.     4  Ran.  460. 

"The  party  praying  a  writ  of  supersedeas,  (and  the  same  course  is  pur- 
sued as  to  writs  of  error,)  presents  a  petition  to  the  court  or  judge,  pointing 
out  the  errors  in  the  proceedings,  and  he  must  procure  some  attorney  prac- 
tising in  such  court  to  certify  that,  in  his  opinion,  there  is  sufficient  error 
for  reversing  the  judgment.  The  court  or  judge  then  grants  or  refuses  it 
at  discretion.  If  a  superior  court  be  applied  to  and  refuses,  the  proper  re- 
medy is  to  petition  to  the  court  of  appeals  for  a  supersedeas  to  the  order 
refusing  it;  since  a  mandamus  is  not  the  proper  remedy.  3  Call,  276, 
389.  The  case  does  not  inform  us  whether,  if  the  application  be  made  to 
the  judge  in  vacation,  a  like  remedy  can  be  pursued.*  It  would  seem  to 
be  an  anomaly  if  a  proceeding  in  the  imture  of  the  writ  of  error  would  lie 
to  his  refusal,  which  is  no  matter  of  record. 

Having  thus  laid  before  the  student  certain  statutory  provisions  as  to  tlie 
institution  or  suing  out  of  writs  of  error,  I  proceed  next  to  remark  upon 
some  common  law  principles  connected  with  the  subject. 

1'.  As  to  the  persons  suing  out  the  writ.  It  is  a  general  principle  that 
no  person  can  bring  a  writ  of  error  unless  he  is  a  party  or  privy  to  the  re- 
cord, or  is  prejudiced  by  the  judgment,  and  therefore  would  receive  advan- 
tage by  the  reversal.  2  Saun.  101,  e.  in  note.  Id.  40,  n.  G.  This  princi- 
ple seems  to  be  admitted  (as  to  writs  of  error)  in  its  full  force,  by  the  judges 
in  the  case  of  Wingfield  vs.  Crenshaw,  3  H.  &  M.  245.  And  in  the  same 
case  it  is  deemed  e(|ualiy  applicable  to  cases  of  supersedeas.  Kow  far  it 
applies  to  that  of  an  appeal  will  be  hereafter  examined.  The  "  party," 
then,  who  sues  out  a  writ  of  error  or  supersedeas,  must  be  technically  a 
party  to  the  cause,  and  not  merely  interested  in  the  controversy.  And  in 
those  cases  which  are  in  their  nature  ex  parte,  if  he  is  interested  in  the  eve7it, 
he  may  make  himself  a  party  in  the  court  below,  and  then  he  has  a  right  to 
sue  out  a  supersedeas  or  u'rit  of  error:  per  Roane,  3  H.  St  M,  256.  See 
also  1  H.  &  M.  401, 

It  is  also  essential  to  the  writ  of  error,  sup(>rscdeas,  or  appeal,  that  the 
party  seeking  it  should  be  aggrieved  by  the  judgment  or  final  order;  for 
though  there  be  error,  yet  if  it  works  no  injury  to  him,  and  still  more  if  it 
is  for  his  benefit,  it  does  not  lie  for  him  to  complain  of  it.  1  W.  7,  381, 
389.  2  H.  &  M.  60,  550.  0  Mun.  394.  So,  if  the  error  was  in  an  instruc- 
tion given  to  the  jury  at  his  own  instance.  1  H.  &  M.  450.  Yet  it  may 
happen  that  a  plaintitf  may  find  it  necessary  to  reverse  a  judgment,  even 
where  it  appears  to  be  rendered  in  his  favor; — as  where  there  is  an  error 
in  the  judgment  prejudicial  to  him,  or  it  is  given  for  a  less  sum  than  he  has 
a  right  to  demand.     For   by  the  reversal  of  the  error  he  may  be  enabled, 

•  In  the  Rivanna  N;ui«ntion  Conipnny  against  iVIonis,  it  was  unanimously  decided  by  the  court  of 
sppcali  thai  a  supereedf:)..  roiild  not  be  awarded  to  the  refusal  of  n  judge  of  the  eiiperior  court  in  ra- 
«u(ion,  to  allow  a  »iiperfad»n»  to  the  Judgment  •fa  county  court. 


CHAP.  19.]  WRIT  OF  ERROR.  881 

upon  a  new  trial,  or  by  bringing  another  action,  to  get  complete  justice,  3 
Burr.  177-2.     2  Saun.  101,  no.  1. 

There  is,  indeed,  one  instance  in  vvliich  a  person  not  party  to  the  record 
may  join  in  a  writ  of  error; — as  where  an  action  is  brought  against  a  mar- 
ried woman  as  a  feme  sole,  and  she  pleads  as/e?;ie  sole,  and  has  judgment 
against  her  and  is  taken  in  execution,  her  husband  joins  in  the  writ  of  er- 
ror coram  nobis. 

It  is  not  only  a  rule  that  no  person  not  a  party  can  sue  out  a  writ  of  error, 
but  it  is  also  a  settled  rule  that  it  must  be  brought  in  the  name  of  all  the 
parties  against  whom  the  judgment  is  given  ; — and  notwithstanding  the 
death  of  any  of  the  parties,  though  the  survivors  must  bring  the  writ,  he 
must  still  be  named,  and  his  death  must  be  alleged.  See  the  form  of  the 
writ  herein,  2  Saun.  101,  e.  And  this  is  the  rule,  both  that  the  writ  of  er- 
ror may  agree  with  the  record,  and  to  prevent  vexation  ;  for  if  each  party 
might  bring  a  writ,  they  might  do  it  successively,  to  the  great  prejudice  and 
delay  of  the  plaintifl",  who,  as  1  conceive,  can  sue  out  no  execution  against 
any  one,  where  the  writ  of  error  is  awarded  even  on  the  application  of 
others.  A  writ  of  error,  which  in  this  respect  is  erroneous,  maybe  quash- 
ed. Garth.  8.  1  Ld.  Ray.  71.  Saun.  101,  f.  When,  therefore,  one  of 
several  defendants  brings  a  writ  of  error  in  which  others  are  unwilling  to 
join,*  he  must  do  it  in  the  names  of  all,  and  those  who  refuse  to  appear 
and  assign  errors,  must  be  summoiicd  and  severed  ;  and  the  writ  of  error 
must  be  proceeded  in  by  the  rest  only  :  and  the  defendant  who  prosecutes 
the  writ  will  not  be  compelled  to  proceed  until  they  have  been  summoned 
and  severed.  Saun.  ubi  sup.  Thus  the  writ  of  error  corresponds  with  the 
record  ;  and,  moreover,  the  other  parties  having  refused  to  assign  errors, 
would,  I  conceive,  be  forever  after  barred  of  the  writ.  See  Bac.  Summons, 
H.     So  that  both  purposes  are  subserved  by  this  course  of  proceeding. 

To  this  general  rule  there  is  the  obvious  exception,  that  if  one  of  the  de- 
fendants in  an  action  of  tort  is  acquitted,  he  need  not  be  joined,  because 
he  cannot  say  that  the  judgment  is  to  his  damage  ;  and,  moreover,  for  that 
reason  he  can  never  vex  the  plaintiff  with  another  writ  of  error.  The  suit, 
however,  should  be  described  in  the  writ  according  to  the  record,  and  thus 
both  objects  of  the  law  herein  will  be  obtained.     Saun.  ubi  sup. 

2.  The  pctiiion  for  a  writ  of  error  having  been  allowed  by  the  judge  by 
his  endorsement  thereon,  it  is  issued  accordingly  by  the  clerk,  as  soon  as 
the  party  shall  have  eutered  into  the  bond  and  security  which  may  be  re- 
quired by  the  order.  This  bond  and  security  is  never  required  of  execu- 
tors or  administrators,  Vvhere  the  judgment  rendered  against  thejn  is  de  bo- 
nis testatoris,  they  being  presumed  to  have  given  an  executor's  or  adminis- 
tor's  bond.t  1  H.  &  M.  16,  -26.  2  Mun.  311.  1  Rand.  3D3.  This  is 
the  uniform  practice.  But  where  the  judgment  is  in  an  action  for  a  devas- 
tavit, or  upon  his  bond,  as  it  is  for  his  own  personal  wrong,  and  does  not 
involve  any  question  touching  the  rights  of  the  testator  or  of  his  estate,  se- 
curity is  required  of  him.  And  in  an  appeal  from  a  decree  in  chancery, 
partly  personal  and  partly  for  acts  of  the  testator,  he  ought  to  give  security 
only  for  so  much  as  relates  to  the  former.  1  Ran.  393.  The  reason  \vhj  no 
security  is  required  of  the  executor  in  such  case,  is  not  only  his  having  al- 
ready given  bond,  but  lest  he  should  be  thereby  prevented  from  duly  defend- 
ing the  estate  by  appealing  from  an  erroneous  decision.  Ibid.  3  Ran.  1,  497. 

"  Where  an  appeal  is  taken  in  the  name  of  several,  any  one  may  move  to  dismiss  as  to  himself,  oa 
ehewin?  tlial  the  appeal  was  taken  against  his  wishes.  4  Ran.GH.  'IMiis  wasa  case  in  eqnily.  teee 
2  Leigh,  lOo,  wlieie  its^eems,  in  equity, one  may  appeal  without  the  oilier;'.  It  is,  indeed,  a  common 
practice,  yel  of  very  tloulnful  propriety.  The  appeal  of  one  deiendant  without  the  others  may  very 
jnateriallv  affectllieir  interesUs  and  throw  the  Ijurdeii  on  (heir  shoulders.  They  should  he  pirrties  m 
Bome  mode  to  defend  their  rights.    Sonip  statutory  regulations  as  to  this  motion  seems  desirable. 

tThis  laaiter  has  recently  been  much  discussed  in  the  court  of  appeals  in  several  cases  not  yet  re- 
ported. 


>( 


332  WRIT  OF  ERROR.  [  book  3. 

From  the  moment  that  the  writ  issues  it  arrests  all  proceedings,  (or  in  the 
language  of  the  law,  it  is  a  supersedeas  to  or  suspension  of  the  judgment 
and  the  execution  thereon.)  It  is  so  absolutely  such,  that  after  the  writ 
issues  (and  even  before  its  service)  the  plaintiff  cannot  take  out  a  casa  and 
have  it  returned  non  est  inventus  so  as  to  charge  the  special  bail.  2  Strange, 
867,  118G.  2  Bl.  Rep.  1183.  1  Wils.  16.  3  T.  R.  390.  Yet  this  prin- 
ciple was  at  common  law  controlled  by  another,  that  an  execution  once  be- 
gun must  be  finished,  and  cannot  be  suspended  or  superseded.  So  that  if, 
before  the  writ  of  error,  a  fifa  were  levied,  the  sheriff  was  bound  to  pro- 
ceed to  sale  ;  but  it  was  then  his  duty  to  return  the  money  into  court  to 
abide  the  event :  for  the  writ  is  only  a  supersedeas  so  long  as  the  writ  is  ex- 
ecutable, but  not  executed.     2  Saun.  101,  i. 

By  our  law,  however,  the  doctrine  is  carried  much  farther.  For  if  the 
execution  has  been  levied,  and  the  property  is  in  the  sheriff's  hands  unsold, 
and  a  writ  of  error  or  supersedeas  is  allowed,  the  property  is  restored  to  the 
owner.*  See  1  W.  120.  2  Call,  217.  6  Mun.  181.  So  if  a  forthcoming 
bond  has  been  given,  and  the  supersedeas  is  allowed  before  the  condition 
broken,  the  condition  is  saved.  Id.  So  a  supersedeas  to  the  original  judg- 
ment is  a  supersedeas  to  proceeding  on  the  forthcoming  bond,  and  the  re- 
versal of  the  judgment  on  the  former  reverses  and  annuls  the  judgment  on 
the  latter  ;  4  Mun.  73,  260 ;  whereas  a  confession  of  judgment  on  the  lat- 
ter releases  all  errors  in  the  former;  1  Rand.  44.  3  Rand.  160;  for  the 
forthcoming  bond  is  but  an  appendage  of  the  original  judgment.  1  Cranch, 
309.  This,  indeed,  is  generally  the  case  with  dependant  judgments.  2 
Saun.  101,  o. 

For  the  proceedings  in  England  in  reference  to  giving  bail  or  security  in 
a  writ  of  error,  see  1  Saun.  101,  i.  &c. 

3.  The  writ  of  error  thus  allowed  and  issued,  though  it  is  at  once  a  su- 
persedeas to  the  judgment  and  execution,  even  before  service,  (except  that 
the  party  may  bring  an  action  of  debt  on  his  judgment  nevertheless,  in  or- 
der to  get  bail,)  yet  ought  it  to  be  served  ;  first,  to  give  notice  to  the  defend- 
ant in  error,  that  he  may  appear  and  contest  it ;  secondly,  because  if  the 
party,  or  his  attorney,  or  the  sheriff,  proceed  after  service  upon  them  re- 
spectively, they  will  bring  themselves  within  a  contempt  of  court;  thirdly, 
if  the  property  be  in  the  hands  of  the  sheriff  and  sold  before  notice  of  the 
supersedeas,  the  bona  fide  purchaser  would  probably  be  protected,  and  thus 
the  plaintifi"  in  error  would  lose  one  benefit  of  his  writ.  It  must  be  observ- 
ed, also,  that  whore  there  are  two  defendants  in  error,  and  only  one  ap- 
pears, the  plaintiff,  by  proceeding  without  the  other,  is  considered  as  waiv- 
ing objections  to  the  writ  of  sci.  fa.  qua.  ex,  non.  being  sued  out  alone  by 
him  who  has  appeared.  3  Bur.  1789.  This  writ  is  used  in  England  to 
compel  the  plaintiff  to  assign  errors.     Here,  however,  it  is  not  used  ;  for 

4.  Though  in  England  the  plaintiff,  after  the  return  of  the  writ  of  error, 
.proceeds  to  an  assignment  of  errors  (2  Saun.  101,  p.)  yet  that  practice  does 
yiot  prevail  with  us.     The  usual  mode  in  cases  of  supersedeas,  which  is  the 

customary  remedy  with  us,  is  to  assign  the  errors  in  the  petition,  and  the 
matter  is  heard  upon  argument  at  bar  without  the  formality  of  ])leading, 
unless  the  party  relies  upon  some  special  matter, — as  a  release.  All  such 
matter  he  mnsl  plead  to  the  writ  of  error  or  supersedeas,  and  upon  an  issue 
joined  on  the  plen,  the  matter  is  tried  by  a  jury  sworn  in  the  court  of  error. 
2  H.  &  IM.  568.  But  though  it  has  not  been  accustomed  here  to  assign 
errors  formally,  yet  where  this  is  required  by  a  scire  facias  <ptarc  cxccution- 
emnon  being  issued,  the  plaintiff  in  a  writ  of  error  might  perhaps  be  Ijound 
to  make  a  formal  assignment.  This  is  in  nature  of  a  declaration,  and  fho 
form  may  be  found  in  Tidd's  Prar.  Forms,  487,  and  in  Lillie's  Entries. 
"All  order  (or  n  superFcdcas  is  no  siipcrscdciis  of  ileell.    6  Vez.jr.  432,  430.    Willcs'  Rep.  4G7. 


CHAP.  19.]  WRIT  OF  ERROR.  333 

To  this  assignment  the  plea  is  "  in  nullo  est  erratum,'''  wliich  is  in  nature  of 
a  demurrer,  and  brings  the  matter  of  law  directly  before  the  court.  Hence, 
as  many  errors  in  law  may  be  assigned  as  the  party  can  shew.  But  on  a 
writ  of  error  in  fact,  it  is  said  only  one  error  can  be  assigned.  2  Saun.  101, 
fj.  Hence,  too,  in  a  writ  of  error  in  fact,  if  the  defendant  would  put  in  issue 
the  truth  of  it,  he  should  not  plead  in  nullo  est  erratum,  but  take  issue,  and 
then  the  matter  is  tried  by  a  jury.     :2  Saun.  10],  r.  s. 

5.  In  England,  the  first  step  after  returning  the  writ  of  error  is  a  motion 
by  the  plaintiff  to  certify  the  record,  and  this  is  regularly  the  case  here,  be- 
cause non  constat  but  that  the  application  for  the  writ  has  been  made  upon 
a  garbled  copy.  But  the  certiorari  is,  I  believe,  usually  dispensed  with, 
unless  there  be  a  suggestion  of  error  or  diminution  by  either  party,  in  which 
case  it  may  be  awarded.  This  writ,  however,  is  only  proper  where  the 
copy  (on  wliich  the  writ  of  error  or  supersedeas  was  awarded)  was  certified 
by  the  clerk,  for  if  it  was  not,  the  writ  of  error  or  supersedeas  itself  should 
be  quashed  as  irregular.  2  Mun.  229.  The  court  may  at  any  time  ex  of- 
ficio award  a  certiorari  of  its  own  mere  motion.     2  Saun.  101,  s. 

6.  The  judgment  in  error  where  given  for  the  defendant  is,  that  the  for- 
mer judgment  be  affirmed.  In  case  of  reversal  in  error  coram  nobis  the 
judgment  is  that  the  former  judgment  be  recalled ; — revocetur.  On  a  writ 
of  error  in  matter  of  law,  it  is  that  the  former  judgment  be  reversed.  The 
judgment  given  on  a  verdict  for  defendant  on  pleading  a  release  of  errors, 
or  the  act  of  limitations,  is  that  the  plaintiff  be  barred  of  his  writ  of  error. 
2  Saun.  101,  v. 

If  the  record  on  an  appeal,  writ  of  error,  or  supersedeas  be  not  delivered 
to  the  clerk  of  the  circuit  court  before  or  during  the  second  term  of  such 
court  after  the  same  was  granted,  it  is  dismissed,  and  cannot  afterwards  be 
revived  unless  for  good  cause  shewn.  I  R.  C.  ch.  69,  §  63.  In  the  court 
of  appeals,  the  record  must  be  filed  in  six  months  in  cases  at  law,  or  final 
decrees  in  equity  ;  and  in  tico  months  in  cases  of  interlocutory  decrees  in 
equity.  In  case  of  dismissal  the  entry  is  not  of  an  affirmance  of  the  judg- 
ment, but  merely  of  the  dismissal.  Moreover  in  such  case  the  appellee 
cannot  have  the  judgment  affirmed,  but  can  only  have  a  dismissal.  1  Call, 
241.  1  H.  &  M.  21.  So  where  no  appearance  is  entered  for  the  appellant, 
the  appellee  may  move  to  dismiss  the  appeal.  If,  however,  instead  of  do- 
ing so,  he  opens  the  record  and  goes  for  an  affirmance,  he  cannot  after- 
wards move  for  a  dismission,  when  he  finds  the  case  likely  to  go  against 
him.     2  W.  75. 

It  is  a  general  principle  that  a  judgment  being  an  entire  thing,  cannot 
be  reversed  in  part  and  affirmed  for  the  residue.  2  Saun.  101,  v.  Thus  a 
joint  judgment  cannot  be  reversed  as  to  one  and  affirmed  as  to  the  other. 
4  Ran.  386.  Yet  by  our  act  it  is  provided  that  if  the  judgment  of  the  in- 
ferior court  be  reversed  in  whole  or  in  part,  the  circuit  court  shall  enter  such 
judgment  as  ought  to  have  been  entered  by  the  court  below.  1  R.  C.  ch. 
69,  §  60.  Nor  indeed  is  this  inconsistent  with  the  principles  of  the  com- 
mon law  ;  for  whenever  there  are  several  and  distinct  judgments,  the  rever- 
sal of  one  will  not  affect  the  other;  and  so  too  where  the  judgment  con- 
sists of  several  distinct  and  independent  parts,  as  lor  damages  and  costs, 
it  may  be  reversed  as  to  the  costs  alone,  &c.  2  Saun.  101,  u.  So  too  in 
an  action  for  an  account,  the  judgment  quod  comjmtet  may  be  affirmed, 
though  the  subsequent  judgment  for  damages  be  erroneous  and  reversed. 
But  if  the  judgment  quod  computet  be  reversed,  the  other  must  be  reversed 
also,  for  it  is  dependant.  And  so  of  a  judgment  on  a  forthcoming  bond 
before  mentioned. 

From  this  section  also  we  find  that  where  the  judgment  of  the  court  be- 
low is  reversed,  the  appellate  court  should  proceed  to  give  such  judgment 


334  SUPERSEDEAS.  [  book  3. 

as  the  court  below  ought  to  have  ^iven.    If  it  does  not  it  is  error.    3  Mun. 
115.     2  H.  &  M.  308.     2  Call,  496. 

In  personal  actions  the  damages,  besides  costs,  when  the  defendant  ap- 
peals or  obtains  a  writ  of  error  or  supersedeas,  are,  if  the  judgment  be  af- 
firmed, ten  per  cent,  on  the  principal  sum,  and  costs  recovered  in  the  infe- 
rior court.  In  real  or  mixed  actions  the  damages  are  $33.33,  besides  costs. 
The  decision  of  the  court,  where  a  judgment  of  a  circuit  court  is  revers- 
ed by  the  court  of  appeals,  is  certified  to  the  clerk  of  the  superior  court, 
and  entered  in  the  order  book,  and  execution  may  then  issue  Irom  the  cir- 
cuit court.  But  where  the  appeal  is  from  the  county  to  a  circuit  court,  and 
the  court  pronounces  the  judgment  the  county  court  ought  to  have  pro- 
nounced, the  execution  issues  from  the  circuit  court  instead  of  the  inferior 
tribunal,  unless  indeed  (as  sometimes  happens)  where  the  cause  is  sent 
back  for  further  proceedings. 

If  judgment  be  reversed  after  execution  and  money  paid,  the  plaintiff  iu 
error  may  either  recover  it  back  by  assumpsit,  or  sue  out  a  scire  facias 
quare  exccutionem  non,  the  object  of  which  is  to  have  restitution  of  what  has 
been  thus  improperly  paid.  See  2  Saun.  101,  y.  I  have  never  known  this 
remedy  used.     A  writ  of  restitution  may  be  awarded  on  motion. 

Of  a  supersedeas.  A  supersedeas  is  a  writ  commanding  a  party  to  for- 
bear doing  a  thing.  Bac.  Supersedeas.  It  is  in  England  an  auxiliary  pro- 
cess, and  was  used  at  common  law  as  the  companion  of  the  writ  of  error. 
But  in  Virginia  the  supersedeas  is  "  in  general  a  mode  by  which  the  re- 
cord of  the  judgment  of  an  inferior  court  is  removed  before  a  superior  juris- 
diction" for  the  purpose  of  correcting  errors  in  the  proceedings  or  judgment. 
And  when  it  is  so,  it  corresponds  and  is  of  the  same  nature  with  a  writ  of 
error,  the  principles  governing  the  latter  applying  to  the  former.  See  1 
W.  163.  When  merely  auxiliary,  it  can  have  no  effect  after  a  decree  or 
judgment  is  carried  into  execution,  since  it  can,  according  to  its  original 
character,  "  only  stay  the  proceedings  in  the  state  in  which  they  are,  but 
yet  the  suit  goes  on  in  the  superior  court  by  the  other  process,  and  if  judg- 
ment be  reversed,  a  writ  of  restitution  issues  to  restore  the  party  to  that  of 
which  he  has  been  dispossessed  by  the  execution.  Where  the  supersedeas 
is  the  only  process,"  i.  e.  when  it  supplies  the  place  both  of  a  writ  of  error 
and  supersedeas,  "  it  may  have  one  or  both  of  those  operations,  according 
as  the  judgment  happens  to  be  executed  or  not."  1  W.  116.  Hence  in 
the  case  here  cited,  though  the  judgment  had  been  executed,  the  super- 
sedeas was  held  good. 

A  supersedeas,  according  to  the  better  opinion,  only  lies  where  the  error 
is  apparent  on  the  face  of  the  proceedings.  3  H.  &  M.  245.  It  is  not, 
therefore,  competent,  in  any  case  of  supersedeas,  to  introduce  evidence  de- 
hors the  record  as  to  the  matter  in  contest.  The  contrary  seems  at  one 
time  to  have  been  supposed,  and  was  strongly  countenanced  in  the  case  of 
Lee  vs.  Turberville.  2  Wash.  162.  That  was  the  case  of  an  application 
for  leave  to  build  a  mill.  A  contest  arose  whether  the  court  of  appeals 
should  go  into  an  examination  of  witnesses  upon  the  merits  of  the  dispute, 
or  should  be  confined  to  errors  appearing  upon  the  face  of  the  record.  The 
court  suspended  an  opinion  upon  this  point  until  the  testimony  was  gone 
through,  and  then  reversed  the  judgment  of  the  district  court,  and  affirmed 
that  of  the  county  court  upon  the  evidence.  Judge  Roane  supposes  errone- 
ously in  Wingfield  vs.  Crenshaw,  that  they  left  the  point  undecided.  The 
contrary,  however,  expressly  appears.  They  only  suspended  their  opinion, 
but  at  last  decided  on  the  evidence,  thus  in  effect  affirming  its  admissibility. 
Since  the  case  of  Wingfield  vs.  Crenshaw,  however,  in  which  there  has  been 
a  general  acquiescence,  the  party  has  been  considered  as  confined  to  er- 
rors on  the  face  of  the  proceedings  in  all  cases  of  supersedeas. 


Chap.  19.]  APPEALS.  335 

Of  appeals.  Besides  the  writ  of  error  and  supersedeas,  the  law  of  Vir- 
ginia has  introduced  into  our  code  another  remedy  for  the  correction  ofe;'- 
rors  of  inferior  courts  of  Kiw.  This  is  an  appeal,  which  we  shall  find  in 
some  respects  much  more  comprehensive  than  writs  of  error  or  superse- 
deas, though  in  others  it  is  trammelled  with  provisions  that  do  not  extend 
to  them. 

As  appeals  (in  reference  to  actions  at  law)  seem  to  be  t'le  creature  of  our 
statute  law,  we  have  only  to  look  to  it,  and  to  decisions  under  it,  for  the  doc- 
trines in  relation  to  them.  Turning,  then,  to  the  1  R.  C.  ch.  69,  §  5(5,  wg 
observe  the  provision,  that  "  when  any  person  or  persons  shall  think  them- 
selves aggrieved,  &,c."  they  may  appeal,  &c.  Here  the  word  person  being 
used  instead  of  the  word  party,  which  we  find  in  the  other  clauses,  this  pro- 
vision has  been  liberally  construed  to  embrace  persons  interested,  who  ap- 
pear in  court  in  ex  parte  cases,  and  contest  the  claims  of  the  adverse  party. 
See  2  Mun.  24'2.  It  is,  however,  essential  that  the  party  appealing  should 
bo  interested  in  the  subject  of  controversy  ;  for  though  for  the  purpose  of 
preventing  errors  in  cases  brought  before  a  court  ex  parte,  an  amicus  curicB 
is  permitted  in  the  court  below  to  contest  a  motion  or  other  proceeding:  2 
Call,  284  ;  yet  a  mere  volunteer  or  amicus  curicB  is  not  permitted  so  far  to 
intrude  himself  into  another's  fend,  as  to  appeal  from  a  decision  in  which 
be  has  personally  no  concern.  Id.  See  also  1  H.  8c  M.  404.  It  is  also 
necessary  that  the  party  should  have  been  aggrieved,  for  he  who  is  not  in- 
jured can  have  no  right  of  appeal.     1  W.  7,  381.     2  H.  &-  M.  66. 

If",  however,  a  person  interested  does  not  appear  and  contest  the  matter 
in  the  inferior  court,  he  cannot,  I  conceive,  appeal.     This  was  decided  by 

Judge  White  in  a  road  case  of  Orr  vs. ,  within  my  remembrance.  The 

party,  however,  is  not  without  remedy  by  action  in  most  cases,  since  he 
is  not  bound  by  a  decision  to  which  he  is  not  a  party.  These  questions 
usually  occur  in  particular  classes  of  cases  to  which  I  shall  presently  advert. 

"By  the  judgment  or  sentence  of  any  county  court  or  court  of  hustings 
in  any  action,  suit,  or  contest."  The  phraseology  here  is  very  extensive. 
It  is  calculated  to  comprehend  not  merely  actions  at  common  law,  in  all 
v\rhich  there  are  parties,  plaintiffs,  and  defendants,  but  all  those  controver- 
sies, also, which  were  in  England  under  the  jurisdiction  of  the  ordinary,  &c>, 
and  which  are  here  placed  under  the  jurisdiction  of  the  county  and  corpo- 
ration courts.  In  these  the  proceeding  is  often  ex  parte.  Thus  in  cases 
respecting  the  probate  of  wills,  the  granting  of  letters  testamentary  and  of 
administration,  the  laying  out  or  stopping  up  or  altering  of  roads,  any  pa?- 
ty  interested  has  by  this  provision  a  right  of  appeal,  if  he  has  made  himself 
party  to  the  proceeding.  The  proceedings  in  these  cases  are  in  their  very 
nature  ex  parte,  or  such  that  all  persons  interested  are  not  necessarily  brought 
before  the  court.  Thus  when  an  executor  offers  to  prove  the  will,  or  an 
administrator  asks  for  letters  of  administration,  no  person  is  called  upon  to 
contest  these  measures,  because  prima  facie  it  is  not  presumed  by  our  law 
that  there  is  any  one  disposed  to  contest  it.  The  motion  is  therefore  made 
ex  parte  as  it  is  called,  that  is,  without  calling  on  any  person  to  contest  it. 
It  is  the  same  thing,  to  a  certain  extent,  as  to  roads  and  mills,  for  though 
the  persons  whose  lands  will  be  affected  by  the  incumbrance  maybe  made 
parties,  others  may  also  be  otherwise  deeply  interested  without  that  interest 
being  known  ;  or  they  may  indeed  have  an  interest  in  common  with  other 
citizens,  which  they  are  not  presumed  to  be  desirous  of  asserting.  If, 
however,  a  party  chooses  to  contest  the  affair,  and  appears  in  court  and 
makes  himself  party  to  the  proceedings,  he  may  do  so,  and  if  he  is  inte- 
rested and  aggrieved,  he  may  appeal ; — and  this,  in  case  of  granting  ad- 
ministration, even  though  he  is  only  attorney  in  fact  for  creditors.  4  Man. 
403.     And  even  an  amicus  curia  or  friend  of  the  court,  if  he  can  suggest 


836  APPEALS.  [book  3. 

reasons  against  the  proceedings,  will,  as  has  been  already  said,  be  permit- 
ted to  do  so  in  the  court  below,  though  he  cannot  appeal. 

In  some  of  the  cases  above  mentioned,  there  is  this  further  peculiarity; — 
that  by  analogy  to  the  proceedings  in  the  civil  law,  whence  appeals  are  tak- 
en, the  facts  are  re-examined  by  the  appellate  tribunal ;  the  witnesses  are 
heard  again — even  new  testimony  may  be  produced,  and  the  cause  is  in  ef- 
fect tried  de  novo.  This  right  of  appeal  as  to  the  facts  still  prevails  in 
cases  of  mills,  roads,  and  letters  of  administration  and  letters  testamentary 
either  in  the  county  or  superior  courts,  though  in  no  other  cases  ;  1  Rand. 
464  ;  and  even  in  those  cases  the  superior  courts  can  only  hear  new  evi- 
dence in  reference  to  the  questions  tried  in  the  court  below  ;  and  the  re- 
cord itself  is  the  only  proper  evidence  to  prove  what  these  questions  were, 
4  Mun.  403.  The  power  of  the  court  of  appeals,  however,  does  not  now 
extend  even  thus  fiir ;  for  it  is  no  longer  competent  to  them  to  hear  oral 
evidence  of  any  kind  in  any  cause.  1  R.  C.  ch.  64,  §  18.  But  the  party 
appealing  may  spread  the  testimony  upon  record,  and  thereupon  the  court 
of  appeals  decides  upon  the  fact  as  well  as  upon  the  law.  In  such  cases, 
however,  the  inferior  tribunals  having  had  an  opportunity  of  hearing  the 
oral  testimony,  are  deemed  the  best  judges  of  credit;  and  where  the  wit- 
nesses were  divided  in  opinion,  and  the  county  and  superior  court  had  con- 
curred in  their  judgment,  the  court  of  appeals  seem  for  those  reasons  to 
have  affirmed  it,  without  going  into  the  question  themselves  as  to  the  weight 
of  evidence.     2  Call,  507. 

In  all  cases  of  appeals  besides  those  above  referred  to,  the  appellate  court 
is  not  less  confined  to  the  errors  apparent  upon  the  face  of  the  record,  than 
in  cases  of  writs  of  error  or  supersedeas.  There  are,  however,  a  few  dis- 
tinctions between  them,  to  which  it  is  proper  to  advert. 

1.  Writs  of  error  or  supersedeas  can  only  be  obtained  upon  petition,  and 
are  allowed  only  where  in  his  discretion  the  judge  may  think  there  is  pos- 
sible error.  An  appeal,  though  it  is  prayed  by  the  party,  is  allowed  to  him 
at  his  own  will  and  pleasure.*  It  is  not  allowed  because  the  judge  thinks 
there  is  error,  but  because  the  "party  thinks  himself  aggrieved."  And  if 
an  appeal  in  such  case  were  refused,  the  refusal  would  in  itself  constitute 
error,  and  then  serve  as  the  foundation  of  a  writ  of  error  or  supersedeas. 
See  what  is  said  3  H.  &,  M.  253,  as  to  the  mandamus  being  the  proper  re- 
medy in  such  case. 

2.  Writs  of  error  and  supersedeas  may  be  granted  after  the  term  is  end- 
ed at  which  the  final  judgment  complained  of  is  rendered.  Appeals  must 
be  granted  before  the  end  of  that  term,  or  it  will  be  too  late.  Yet  if  the 
time  for  appealing  has  been  permitted  to  slip,  a  supersedeas  or  writ  of  er- 
ror may  be  afterwards  resorted  to.     3  H.  &,  M.  252. 

3.  Writs  of  error  or  supersedeas  may  be  granted  where  the  judgment 
amounts  only  to  $33.33.  An  appeal  can  only  be  granted  when  it  amounts 
to  $100  or  more. 

4.  In  writs  of  error  or  supersedeas,  errors  are  assigned  in  the  petition 
presented  to  the  judge.  In  an  appeal  there  is  no  assignment  of  errors  at 
all,  except  in  argument  at  bar.  There  can  be  no  appeal  to  the  court  of  ap- 
peals from  the  judgment  of  a  superior  court  on  a  forthcoming  bond.  1  R. 
C.  ch.  64,  §  12.     A  writ  of  error  or  supersedeas  are  the  only  remedies.     An 

*  This  is  no  longer  the  law.  No  appeal  to  the  circuit  courts  is  now  deaiandal)le  as  of  right,  except 
in  cases  of  mills,  wills,  administrations,  guardianship,  and  insane  persons.  tfiSO,  ch.  11,  §  30.  No  ap- 
peal ic/iaderer  to  the  court  of  appeals  is  demandable  of  right.  Id.  $  31.  Guardianship  was  not  in- 
cluded in  the  former  laws  relative  to  appeals.  So  ruled  in  Dupuy  vs.  Hardaway,  in  the  court  of  ap- 
peals, Io34. 

No  damages  are  now  allowed  on  aflinnance  beyond  legal  interest.  1830,  ch.  11,  {i  32.  But  where  the 
judgment  carried  no  interest,  (as  in  cases  of  tort,)inierest  will  be  allowed  as  damages  on  affirmance. 
This  clause  is  not  retroactive.    3  Leigh,  Watson  vs.  rowcll. 
L,Tliejuri8diction  of  the  court  of  appeals  extends  to  no  case  under  $100. 


CHAP.  20.]  EXECUTION.  337 

appeal,  however,  lies  to  the  superior  court  from  ah  inferior  court,  for  that 
is  not  taken  away  by  the  act. 

It  may  not  be  amiss  here  to  refer  the  student  to  what  is  said  by  Judge 
Tucker,  3  H.  &  M.  253,  as  to  the  remedy  by  certiorari,  as  an  original  pro= 
cess.  It  is,  however,  rarely  if  ever  used  by  us,  except  as  auxiliary  process 
for  the  purpose  of  obtaining  correct  copies  of  records  in  cases  depending 
before  a  court  of  error.  ^ 

CHAPTER  XX. 

OF  EXECUTION. 

*'  If  the  regular  judgment  of  the  court,  after  the  decision  of  the  suit,  be 
not  suspended,  superseded,  or  reversed,  by  one  or  other  of  the  methods 
mentioned  in  the  two  preceding  chapters,  the  next  and  last  step  is  the  exe- 
cution of  that  judgment ;  or  putting  the  sentence  of  the  law  in  force.  Thia 
is  performed  in  different  manners,  according  to  the  nature  of  the  action 
upon  which  it  is  founded,  and  of  the  judgment  which  is  had  or  recovered." 

Before  we  proceed,  however,  to  the  consideration  of  the  several  specie:i 
<jf  execution,  furnished  by  the  law  for  the  purpose  of  enforcing  the  judg- 
ment of  the  court  according  to  the  nature  of  the  action,  a  variety  of  mat- 
ters demand  our  attention  in  relation  to  executions  generally. 

1.  It  maybe  remarked,  in  the  first,  place  that  no  execution  whatever  can 
issue  in  a  court  of  law,  except  upon  a  final  judgment. 

In  the  court  of  chancery,  by  the  special  provisions  of  the  act  1  R.  C.  ch. 
134,  §  56,  process  of  execution  may  be  av/arded  by  the  court  in  its  discre- 
tion, or  by  the  judge  in  vacation,  upon  any  interlocutory  decree  which  shall 
not  have  been  appealed  from,  or  which  shall  have  been  affirmed  on  appeal. 
Independent  of  our  statute,  indeed,  no  execution  could  overissue  in  chan- 
cery, for  its  decrees  were  formerly  only  enforced  by  attachment,  seques- 
tration, Sec;  whereas  it  is  now  provided,  1  R.  C.  ch.  134,  §  1,  that  persons 
recovering  any  debt,  damages,  or  costs,  in  any  court  of  record  in  the  com- 
monwealth, may,  at  their  election,  sue  out  writs  of  fieri  facias,  elegit,  and 
capias  ad  satisfaciendum,  within  the  year.  This  provision  comprehends 
the  courts  of  equity  which  thus  have  the  same  power  as  courts  of  law  to 
enforce  their  decrees,  and  the  further  privilege  of  directing  such  executions 
as  they  may  deem  proper  to  issue  even  oh  interlocutory  decrees. 

2.  From  the  very  language  of  the  statute  it  appears  that  the  execution 
must  issue  within  the  year  after  the  judgment;  but  by  ch.  128,  §  5,  it  is 
farther  provided,  that, 

"  Judgments  in  any  court  of  record  where  execution  hath  not  issued,  may 
be  revived  by  scire  facias, ^^  and  so  "when  execution  hath  issued  anc  no* 
return  has  been  made."* 

These  provisions  correspond  very  much  with  those  of  the  common  law 
and  British  statutes  on  the  subject.  By  the  common  law,  if  a  plaintiff  ob- 
tained judgment  in  any  personal  action,  and  remained  quiet  without  taking 
out  an  execution  of  any  description  within  the  year,  he  could  not  do  so  af- 
terwards, but  he  was  driven  to  his  action  of  debt  upon  the  judgment,  if  he 
had  in  fact  never  received  the  amount;  in  which  action  the  defendant; 
might  have  an  opportunity  of  proving  that  he  had  discharged  it,  if  he  had 
really  done  so.  See  2  Inst.  469.  Carth.  -30.  The  failure  to  issue  his  exe- 
cution did  not  have  the  effect  of  satisfying  the  judgment  indeed,  but  only 
compelled  him  to  assert  his  demand  by  a  new  action  founded  upon  the 
judgment  itself.t     He  had  not  even  the  benefit  of  a  scire  facias  to  re- 

*Sce  Post.  370  in  note.    This  clause  of  tiie  act  is  not  retroactive. 

t  Interest  7nay  be  ailov/ed  in  the  shape  of  damages  in  an  action  of  debt  on  a  judgment,  though  not 
carrying  interest  in  terms.  But  payments  made  subsequent  to  the  judgment  shall  be  set  off  a;iuinst 
the  principal.    Mercer  vs.  Be.-.le,  4  Leigh. 

VOL.  2 — 43 


SBS  EXECUTION.  [  BOOK  3. 

vive  his  judgment,  tliough  this  was  soon  provided  by  the  statute  13  Ed.  Jr. 
Stat,  1,  ch.  45.  See  2  Inst,  469.  Co.  Litt.  290.  This  statute,  however, 
(which  is  sHved  to  us,  if  necessary,  by  the  act  1  R.  C.  ch.  40,  §  5,)  enabled 
the  plaintiff  to  revive  his  judgment,  after  it  had  run  out  of  date,  by  a  scr/e 
facias,  calling  upon  the  defendant  to  shew  cause  why  the  plaintiif  should 
liot  have  the  effect  of  his  judgment,  and  be  permitted  to  sue  out  execution. 
By  the  judgment  upon  such  a  scire /acias,  the  original  judgment  became 
and  was  revived,  and  of  course  with  it  any  lien  of  the  judgment  upon  the 
lands  or  property  of  the  debtor. 

But  even  after  the  scire  facias  was  given  by  the  statute,  the  original  prin- 
ciple was  preserved,  that  where  the  plaintiff  had  sued  no  execution  what- 
ever, within  the  year,  he  could  not  after  the  year  obtain  any,  until  he  had 
availed  himself  of  his  statutory  remedy  by  scire  facias.  And  such  is  still 
Ihe  law  under  our  statutes,  which  provide  that  execution  may  be  sued  with- 
in the  year,  (1  R.  C.  ch.  134,  §  1,)  but  that  where  «o  execution  hath  issued 
the  judo-ment  may  be  revived  within  ten  years,  and  not  after.  1  R.  C.  ch. 
128,  §  5. 

But  although  where  there  is  no  execution  issued  upon  a  judgment  with- 
in the  year,  the  judgment  is  presumed  to  be  satisfied,  because  it  can  scarce?- 
ly  be  supposed  that  the  party,  after  the  expense  of  prosecuting  his  claim, 
would  fail  to  enforce  it  if  it  were  not  paid  ;  yet  it  is  otherwise  where  execu- 
tions have  issued  and  are  returned  not  satisfied,  or  have  issued  and  not 
been  returned  at  all.  In  the  first  case  the  presumption  of  satisfaction  is 
expressl-y  negatived  by  the  return  ;  in  the  latter  it  is  very  much  weakened 
by  the  fact  that  the  party  has  been  prosecuting  his  claim,  and  has  been 
possibly  foiled,  either  by  the  negligence  of  the  officer  or  the  dexterity  of  the 
defendant.  In  these  cases,  therefore,  the  judgment  did  not  run  out  of  date 
at  couimon  law,  and  no  scire  facias  under  the  statute  was  necessary,  though 
our  law  has  novv'  provided  that  in  the  latter  case  (but  not  in  the  former,  6 
Mun.  32,)  new  execution  shall  not  continue  to  issue  after  ten  years  have 
expired.  1  R.  C.  ch.  128,  §  5.  Hence  if  an  execution  of  any  kind  hath 
issued  during  the  year,  the  judgment  does  jiot  run  out  of  date,  whether  it 
be  duly  returned  or  not.  Hence,  too,  the  practice  of  issuing  an  execution 
(of  some  kind  or  other)  and  permitting  it  to  lie  in  the  office.  This  k^eeps 
alive  the  judgment.  See  2  Inst.  471.  Co.  Litt.  200,  b.  Bac.  Scire  facias, 
C.     See  3  Ran.  493. 

In  conformity  with  the  princijiles  above  stated,  it  has  been  decided,  that 
where  the  party  liaving  a  right  to  sue  out  execution  has  been  prevented 
from  doing  so  by  the  act  of  his  adversary,  as  by  his  obtaining  an  injunction 
to  the  judgment,  in  that  case  the  execution  may  be  sued  out  at  any  time 
within  the  year  after  the  dissolution  of  the  injunction.  For  here  there  is 
no  fault  in  the  party,  and  moreover  no  inference  of  payment  can  be  drawn 
from  his  delay,  since  the  proceedings  in  equity  sufticiently  evince  that  no 
payment  can  have  been  made.  See  0  Mun.  185,  187.  2  Bur.  C(30.  See, 
however,  Bac.  Abr.  scire  facias,  C.  In  like  manner  if  the  ])lainliff  has 
been  delayed  by  writ  of  error,  and  the  judgment  is  affirmed,  he  may  issue 
his  execution  within  a  year  af.er  tire  affirmance,  for  this  is  a  new  judgment ; 
and  indeed  though  the  writ  of  error  be  dismissed,  so  that  there  is  no  new 
jddgment,  still  the  party  has  the  same  right.  Bac.  tibi  supra.  So,  too,  if 
there  be  a  stay  of  execution  for  a  year,  the  plaintiff  may  have  execution 
within  the  year  after  the  expiration  thereof,  without  resorting  to  his  scire 
facias.     Idem. 

3.  In  issuing  the;  execution  upon  the  judgment  the  greatest  care  must  be 
taken  that  it  accurately  corresponds  with  it.  The  slightest  variance  will 
be  fntal,  even  though  it  be  prejudicial  to  the  plaintiff  and  beneficial  to  the 
defendant  ;  as  if  on  a  judguicnt  fur  JClOl,  the  execution  should  issue  only 


CHAP.  SO.]  EXECUTIONS.  839 

for  £100.  It  might  be  quashed  for  the  variance  on  the  motion  either  of  the 
plaintitf  or  defendant  ;  by  the  former  because  it  is  injurious  to  him,  and  by 
the  latter  because  of  the  variance.  For  the  payment  of  the  execution  for 
£iOO  would  not  carry  upon  its  face  evidence  of  satisfaction  of  the  judgment 
for  £101,  and  were  a  new  execution  for  the  proper  sum  to  issue,  the  de- 
fendant could  not  avail  himself  (as  he  ought  to  be  enabled  to  do)  of  record 
evidence  that  the  judgment  had  been  discharged.  Hence  the  law  always 
requires  the  most  exact  correspondence  between  the  judgment  and  the  ex- 
ecution issued  upon  it ;  a  want  of  which  renders  the  execution  irregular 
and  voidable. 

4.  When  for  any  cause  an  execution  is  irregular,  the  party  injured  there- 
by may,  upon  motion,  obtain  an  order  for  quashing  it ;  i.  e.  for  vacating 
and  annulling  it ;  in  which  case  it  becomes  void  ab  initio,  and  all  interme- 
diate acts,  done  in  pursuance  of  it,  are  also  avoided.  We  shall  have  occa- 
sion again  to  touch  upon  this  subject  in  a  subsequent  passage.  It  may 
therefore  suffice  here  to  observe  that  an  execution  may  be  quashed  eithex 
by  plaintiff  or  defendant  where  it  is  uTegular,  and  according  as  it  may  be 
injurious  to  the  one  or  to  the  other. 

5.  We  will  next  inquire  from  what  court  the  execution  must  issue  ?  And 
here,  as  a  general  rule,  it  is  obvious  that  it  must  issue  from  that  court  in 
which  the  judgment  is  rendered  :  but  where  a  judgment  has  been  render- 
ed in  an  inferior  court,  and  there  is  an  appeal,  writ  of  error,  or  supersedeas 
to  an  appellate  tribunal,  the  following  principles  prevail : 

1.  That  where  a  decree  or  judgment  of  a  court  of  chancery  or  circuit 
court  is  either  reversed  or  affirmed  by  the  court  of  appeals,  a  copy  of  their 
judgment,  accompanied  by  a  certificate  of  the  costs  of  that  court,  is  trans- 
mitted, by  directions  of  the  lavi^,  to  the  chancery  or  circuit  court,  as  the 
case  may  be,  who  are  directed  to  enter  it  as  their  own,  and  to  award  execU' 
lion  thereon  accordingly.  1  R.  C.  ch.  64,  §  21,  ad  finem.  Thus  execution 
never  issuiBS  from  the  court  of  appeals,  but  always  from  the  court  below, 
where  the  judgment  was  given. 

2.  When  a  circuit  court  reverses  the  decision  of  a  county  or  corporation 
court,  in  whole  or  in  part,  and  the  cause  is  not  sent  back  for  further  pro- 
ceedings, the  circuit  court  proceeds  to  enter  such  judgment  as  the  court  be- 
low ought  to  have  entered,  and  the  execution  issues  from  the  office  of  the 
superior  court,  and  not  from  that  of  the  county  court. 

3.  Where  the  decision  of  the  county  court  is  affirmed  by  the  judgment 
of  the  superior  court,  the  proceeding  does  not  materially  differ  :  for  instead 
of  certifying  the  affirmance  so  that  the  execution  may  issue  from  the  counr 
ty  court,  it  issues  at  once  from  the  superior  court. 

6.  To  what  county  or  bailiwick  can  the  execution  issue  ?  Eetore  the 
amendment  of  the  laws,  it  was  decided  that  if  a  judgment  was  obtained  in 
the  court  of  the  county  where  the  defendant  resided,  he  could  not  be  taken 
on  a  casu,  directed  to  a  county  whither  he  may  have  gone  at  the  time  such 
casa  was  levied,  it  not  being  proved  that  he  had  moved  his  property,  or  the 
balk  of  it,  out  of  his  own  county.  2  W.  72.  The  words  of  the  law  at  that 
time  required  the  removal  of  the  party  ajid  his  effects,  before  he  could  be 
taken  on  such  casa.  The  present  act  authorizes  the  casa  or  fifa  to  issue 
to  any  county  or  corporation  in  which  the  defendant  or  his  goods  may  be 
found,  v/hen  the  defendant  hath  removed  himself  or  his  effects,  or  shall 
reside  out  of  the  jurisdiction  of  the  court.  1  R.  C.  ch.  134,  §  12.  Hence 
it  would  seem  no  longer  essential  that  the  removal  be  intended  as  a  perma- 
nent one. 

7.  In  whose  names  must  the  execution  issue?  Pursuing  the  prmciple 
already  announced,  that  the  execution  should  accurately  correspond  with 
ihe  judgment  on  which  it  is  founded,  it  is  sufficiently  obvious  that  every 


340  EXECUTIONS.  [itooK  3. 

execution  ought  to  be  issued  in  the  name  of  the  phiintifT  or  plaintiffs  iji 
the  action,  however  many  there  may  be,  against  all  the  defendants,  wliere 
all  the  parties  are  in  being-.  For  if  several  have  recovered,  the  payment  of 
the  debt  or  damages  should  be  to  them  all,  and  if  the  recovery  is  from  se- 
veral, both  the  plaintiff  and  the  defendants  have  an  interest  that  all  should  be 
joined  ;  besides  which  the  law  requires,  as  we  have  seen,  (and  upon  sound 
reason  too,)  that  all  the  proceedings  should  harmonize  with  each  other, 
and  that  the  whole  record  should  be  consistent  with  itself.  Now  this  prin- 
ciple would  be  grossly  violated  if  executions  were  permitted  to  issue  for 
pne  or  more  of  several  plaintiffs  against  one  or  more  of  several  defendants. 
But  it  becomes  material  to  consider  in  reference  to  this  principle. 

The  effect  of  the  death  of  any  of  the  parties  after  the  judgment.*  And 
here  I  will  premise  that  no  execution  can  ever  issue  for  or  against  any  per- 
son who  is  not  party  to  the  original  judgment^  or  made  so  by  some  proceed- 
ing subsequent  to  it.  Bac.  Scire  facias,  C.  4.  Moreover  no  person  can 
be  made  party  plaintiff  by  such  subseqi^ent  proceeding,  who  is  not  a  privy 
to  the  judgment,  or  entitled  to  the  thing  recovered,  as  heir,  executor,  or  ad- 
ministrator of  him  who  had  judgment,  nor  can  any  person  be  made  defen- 
dant to  the  execution  by  such  subsequent  proceeding,  who  is  not  chargea- 
ble with  the  debt  or  demand.     See  Bac.  Ex.  F.  G. 

Again  :  the  law  is  rigorous  in  requiring  that  all  the  proceedings  should 
harmonize  with  each  other,  and  that  every  record  should  upon  its  face  ap- 
pear consistent  with  itself.  When,  therefore,  a  judgment  is  rendered  in 
favor  of  two  or  more,  and  one  dies,  it  is  obvious  that  the  process  cannot 
go  on  in  his  name  ;  and  if  it  were  to  proceed  in  the  name  of  the  other  with- 
out the  death  appearing,  it  would  produce  confusion  and  inconsistency. 
Hence,  during  the  pendency  of  a  suit,  if  one  of  two  plaintiffs  or  defendant? 
dies,  the  death  of  the  party  is  suggested  on  the  record,  and  the  cause  pro- 
ceeds afterwards  in  the  name  of  the  survivor.  In  this  case,  however,  as 
the  cause  is  in  progress,  the  suggestion  is  sufficient,  because,  if  not  true,  it 
may  be  traversed  by  the  party  surviving,  and  if  not  denied,  it  is  considered 
as  admitted.  But  where  there  is  but  one  plaintiff  or  one  defendant,  and  he 
dies,  the  mere  suggestion  will  not  do,  but  there  must  be  a  scire  facias  to 
revive  in  the  name  of  the  representative  of  the  deceaf^ed.  So  after  ajudg- 
uiejit,  whether  there  is  more  than  one  party  or  not,  the  cause  being  out  of 
court,  it  was  formerly  held  that  the  mere  suggestion  in  the  execution  would 
not  do,  but  the  scire  facias  was  deemed  necessary  to  revive  the  judgment 
in  the  name  even  of  the  survivor ;  for  the  suggestion  may  be  false,  and  this 
measure  was  adopted  to  enable  the  party  interested  to  contest  it  if  he  pleases. 

But  the  modern  practice  seems  otherwise  ;  SeeTidd's  Prac,  1028.  Sel. 
.578.  Raymond,  808 ;  from  which  it  appears  that  a  suggestion  on  the  roll, 
in  England,  will  suffice.  If  false,  llie  defendant  may  move  to  quash  the 
execution  on  the  ground  of  its  having  issued  irregularly. 

The  sQire facias  is  a  writ  or  summons  which,  if  the  plaintiff  is  dead,  calls 
upon  the  defendant  in  the  name  of  the  representatives  of  the  deceased,  to 
shew  cause,  if  any  he  can,  why  the  suit  should  not  proceed  in  their  names. 
Mutatis  mutandis,  a  like  course  is  pursued  if  the  defendant  is  dead  ;  and 
where  both  are  dead,  the  scire  facias  is  so  formed  as  to  fit  that  case  also. 
By  these  means  the  executors,  or  administrators,  or  heirs,  (according  to  the 
nature  of  the  case,)  arc  made  plaintiffs  or  defendants  instead  of  the  dece- 
dent, and  their  names  arc  thus  introduced  into  the  record.     In  like  manner, 

*Tlic«rirc  farins  lo  revive  agnliifi  ilio  lirir,  it  is  said,  will  not  lieiintil  vihil  reliirned  against  (he  cxe- 
riitor.  r;ailli.  in?.  2  .S.iiin.  7i!,  p.  fj,  r.  liac.  sci.  lit.  I'aolon  ?)S.  Hali'.  Tidil  alpo  clips  the  same 
<-a«e  10  llie  same  poinl.  Tlin  leason  clearly  is  that  as  on  an  elf^gil  against  llio  aiicpsior  in  liis  lifetime, 
liis  land?  ronld  not  he  seized,  provided  tlierc  were  go'ids  r-urficient  lo  discharge  the  dtl)l,  (sec  Fosf. 
360,)  and  as  the  landa  in  the  liandsof  (lie  heir  are  cliarKcaltle  so  far  only  as  llie>  were  rliargeahle  in 
those  of  the  ance.-^lor,  «  deficit  of  th:  pfrsonnlty  ought  !c  Ijc  shewn  bclore  the  bnds  can  be  charged, 


CHAP.  20.J  EXECUTIONS.  841 

where  after  judgment  it  happens  that  a  third  person  becomes  interested  in 
the  proceeding,  a  scire  /arias  becomes  essential.  As  where  a  feme  plain- 
tiff or  defendant  marries;  iii  lliose  cases  (he  execution  could  not  properly 
issue  for  or  against  the  husband,  without  giving  the  opposite  party  nu  op- 
portunity to  contest  the  fact  of  marriage  if  lie  thought  proper.  For  this 
purpose,  also,  a  scire  facias  is  necessary,  calling  upon  the  adverse  party 
to  shew  cause,  if  he  can,  why  this  new  party  should  not  be  introduced  in- 
to the  record  and  made  j)laintiff"  or  defendant,  in  order  to  enable  him  to 
have  the  advantage  of  the  judgment,  or  to  be  rendered  subject  to  its  pay- 
ment. Bac.  Scire  facias,  C.  G.  In  short  it  may  be  laid  down  as  a  gene- 
ral rule,  that  no  person  shall  sue  out  any  execution  who  was  not  party  to  the 
judgment  when  it  was  rendered,  or  who  has  not  been  since  made  so  by 
scire  facias.     2Ld.  Ray.  768. 

Where  a  judgment  is  rendered  against  two,  and  then  one  dies  before  ex- 
ecution issued,  if  t!ie  party  proceeds  by  scire  facias  it  issues  against  the 
survivor  separately,  and  the  judgment  is  revived  separately  against  him. 
But  by  our  law  it  may  be  alsQ  revived  against  the  representatives  of  4he  de- 
ceased, though  by  a  separate  scire  facias.     See  6  Ran.  18-2. 

But  though  the  scire  facias  is  necessary  to  revive  a  judgment  where  a 
sole  plaintifl"  or  defendant  dies  before  execution  issued,  yet  it  is  very  dif- 
ferent where  the  execution  has  been  issued  and  levied,  whether  it  be  a  casa 
or  a.  fieri  facias  :  for  then  it  does  not  lose  its  force,  though  the  plaintiff  be 
dead  ;  but  the  body  of  a  surviving  defendant  who  has  been  taken,  must  be 
still  kept  in  execution,  or  the  goods  taken  must  be  sold  and  the  money 
made.  In  like  manner,  if  the  delendant  dies  after  the  execution  is  deliver- 
ed to  the  sheriff  and  before  it  be  served,  the  officer  may  proceed  to  levy  it 
upon  his  goods  in  liis  executor's  hands  to  be  administered,  for  the  goods 
were  bound  by  the  delivery.  Bac,  Execution,  C.  2  Ld.  Ray.  850.  It  is 
said,  indeed,  in  this  case  from  Raymond,  and  such  is  certainly  the  law, 
that  the  execution  must  proceed  if  the  decedent  dies  before  the  delivery  to 
the  sheriff,  but  after  the  test  of  the  execution.  And  the  reason  is,  that  the 
goods  are  bound  from  the  date  of  the  writ,  (which  may  be  tested  back  as  of 
the  first  day  of  the  term  when  the  judgment  was  rendered,)  except  against 
bona  fide  purchasers  before  the  delivery  of  the  writ  to  the  sheriff. 

8.  It  not  unfrequently  happens  that  the  plaintiff  in  an  action,  who  has 
sued  out  one  execution  against  the  defendant,  finds  that  it  is  not  likely  to 
be  productive,  and  desires  therefore  to  sue  out  one  of  a  different  species. 
For  this  the  act  of  assembly  has  made  provision.  1  R.  C.  ch.  134,  §  3.  It 
declares  that  where  an  execution  has  issued,  and  the  party  desires  to  take 
out  another,  he  may  do  so  at  his  own  costs,  if  the  first  be  not  returned  aiicl 
executed: — for  if  executed,  then  there  could  be  no  propriety  in  permitting 
•him  to  have  another.  And  it  is  further  provided,  that  if  a  casa  is  returned 
jiot  found  afifa  may  issue  ;  and  vice  versa  if  the  fifa  is  returned  nulla  bona, 
or  if  part  only  of  the  debt  be  made,  (3  B.  C.  417,)  a  casa  may  issue ;  and 
where  part  of  the  debt  is  levied  on  an  elegit,  a  new  elegit  may  issue  for  the 
residue,  and  where  nihil  is  returned  on  an  elegit,  a  casa  or  fifa  may  issue, 
and  vice  versa.  It  seems  under  these  provisions  the  plaintiff  may  take  out 
a  casa  and  fifa  at  the  same  time,  but  both  cannot  be  served.  8  Mod.  302. 
6  Taun.  370.     3  Ser.  &  Rawle,  142.     3  Cranch,  96. 

9.  By  the  same  section  it  is  provided,  that  where  one  judgment  is  ob- 
tained against  several  defendants,  execution  shall  issue  as  if  it  were  against 
one  defendant,  and  not  otherwise.  So  that  if  I  have  a  judgment  against 
A,  B,  and  C,  I  cannot  have  a  casa  against  one,  an  elegit  against  another, 
and  VL  fifa  against  a  third.     I  must  have  one  execution  against  ail. 

Having  premised  thus  much  concerning  executions  generally,  I  proceed 
jicxt  to  consider  the  several  species  provided  by  the  law  according  to  the 


342  EXECUTIONS.  [  BOOK  3. 

nature  of  the  action  in  which  it  is  issued,  and  the  judgment  sought  to  be 
enforced. 

I.  "  If  the  plaintiff  recovers  in  an  action  real  or  mixed,  whereby  the  sei- 
sin or  possession  of  land  is  awarded  to  him,  the  writ  of  execution  shall  be 
an  habere  faciaa  seisinam,  or  writ  of  seisin,  of  a  freehold  :  or  an  habere  fa- 
cias possessionem,  or  writ  of  possession,  of  a  chattel  interest.  These  are 
writs  directed  to  the  sheriff  of  the  county,  commanding  him  to  give  actual 
possession  to  the  plaintiff  of  the  land  so  recovered  ;  in  the  execution  of 
which  the  sheriff  may  take  with  him  the  posse  comitatus,  or  power  of  the 
county  ;  and  may  justify  breaking  open  doors,  if  the  possession  be  not  qui- 
etly delivered.  But,  if  it  be  peaceably  yielded  up,  the  delivery  of  a  twig,  a 
turf,  or  the  ring  of  the  door,  in  the  name  of  seisin,  is  sufficient  execution  of 
the  writ."  Upon  these  writs  the  plaintiff  is  to  shew  the  sheriff  the  land, 
and  take  possession  at  his  peril  ;  for  if  he  takes  possession  of  the  wrong 
tract,  he  (the  plaintiff)  is  a  trespasser.  See  1  Bur.  6*^9.  Yet  our  courts 
seem  to  have  leaned  very  much  in  fiivor  of  such  certainty  in  verdicts  as  wijl 
enable  the  sheriff  to  know  how  to  deliver  possession. 

If  after  verdict  and  judgment  in  ejectment,  the  plaintiff  is  delayed  by  in- 
junction for  more  than  a  year,  this  writ  may  be  awarded  him  on  motion, 
and  he  will  not  be  driven  to  his  scire  facias,  provided  not  more  than  a  year 
has  elapsed  since  the  dissolution  of  the  injunction  ;  or  (when  there  has 
been  an  appeal)  since  the  affirmance,  by  the  court  of  appeals,  of  the  de- 
cree dissolving  the  injunction.  SeeGMuu.  185.  If,  in  the  meantime,  the 
term  has  expired,  it  may  be  enlarged  by  the  court  on  a  rule  to  shew  cause. 
Ibid. 

"  In  other  actions,  where  the  judgment  is  that  something  in  special  be 
done  or  rendered  by  the  defendant,  then,  in  order  to  compel  him  to  do  so, 
and  to  see  the  judgment  executed,  a  special  writ  of  execution  issues  to  the 
sheriff  according  to  the  nature  of  the  case.  As,  upon  an  assise  of  nuisance, 
or  quod  perniittat  prosternere,  where  one  part  of  the  judgment  is  quod  nocu- 
menluni  amoveatur,  a  virit  goes  to  the  sheriff  to  abate  it  at  the  charge  of  the 
party,  which  likewise  issues  even  in  case  of  an  indictment. 

"in  detinue,  after  judgment,  the  plaintiff  shall  have  a  distringas,  to  com- 
pel the  defendant  to  deliver  the  goods,  by  repeated  distresses,  or  else  a.  scire 
facias  against  any  third  person  in  whose  hands  they  may  happen  to  be,  to 
shew  cause  why  they  should  not  be  delivered  :  and  if  the  defendant  still 
continues  obstinate,  then  (if  the  judgment  hath  been  by  default  or  on  de- 
murrer) the  sheriff  shall  summon  an  inquest  to  ascertain  the  value  of  the 
goods  and  the  plaintiff's  damages  :  which  (being  either  so  assessed,  or  by 
the  verdict  in  case  of  an  issue)  shall  be  levied  on  the  person  or  goods  of 
the  defendant." 

The  writ  of  distringas,  Mr.  Blackstone  tells  us,  commands  the  sheriff  to 
distrain  the  goods  and  chattels  of  the  defendant,  "so  that  neither  he  nor 
any  person  by  him  (i.  e.  his  authority)  may  lay  hands  on  them."  It  appears, 
however,  that  not  only  the  goods  and  chattels,  but  the  lands  and  tenements 
of  the  defendant  are  distrained,  and  the  sheriff  is  directed  to  take  the  is- 
sues thereof  until  the  defendant  produces  the  j)roperty  "of  the  value  of  so 
much,  if  it  may  be  had,  or  the  price  aforesaid,  if  it  is  not  to  be  had."     See 

5  jNIun.  109,  170.  In  pursuance  of  this  writ  the  sheriff  takes  all  the  de- 
fendant's lands  and  goods  into  his  possession,  and  receives  the  issues  and 
profits  thereof,  until  he  gives  up  the  property.  These,  however,  are  not  ap- 
plied to  the  satisfaction  of  the  claim,  for  the  distringas  is  a  mere  measure 
of  constraint;  the  party  is  considered  in  contempt,  and  the  rents  and  pro- 
fits go  the  commonwealth.     G  Com.  Dig.  100,  101.     Gilb.  Ex.  27,  &c.  cited 

6  Man.  1/1. 


CHAP.  29.J  OF  THE  CASA.  343 

In  the  execution  of  this  process,  I  understand  Ihnt  th^  duty  of  the  oni- 
cer  does  not  require  him  to  tulce  tiie  properly  itself,  or  to  make  the  alter- 
native value  in  the  first  instance.  He  is  only  to  distrain  liie  f,roods  and  chat- 
tels, lands  and  tenements,  and  take  the  issues  and  profits  tJiereof.  until  the 
defendant  produces  and  delivers  the  property  to  him  for  the  plaintiff.  For 
the  dislringas,  it  is  said,  is  not  a  valuable  execution,  but  a  mere  measure 
of  constraint.  If  the  defendant,  therefore,  continues  obstinate,  and  the 
distringas  is  returned  executed,  (that,  is  that  the  sheriff  had  distrained  tl!« 
goods,  &c.  according  to  the  precept,)  but  without  satisfiiclion,  (that  is,  witli- 
out  having  received  the  property  from  the  defendant  for  the  plaintiff,)  the 
plaintiff  may  either  leave  the  dislringas  to  its  fiirther  compulsory  operation, 
or  if  he  despairs  of  overcoming  the  obstinacy  of  the  defendant,  he  may 
move  the  court  to  direct  the  distringas  to  be  superseded  so  far  as  relates  to 
the  specific  thing,  and  award  a  new  distringas  to  be  executed  for  the  alter- 
native value  only.  1  R.  C.  134,  §  46.  This,  like  the  former,  is  not  direct, 
but  operates  indirectly  only  to  compel  the  defendant  to  pay  the  alternative 
value,  by  continuing  to  hold  his  property  in  a  state  of  sequestration.  But 
as  this  remedy  may  from  many  causes  sometimes  prove  ineffectual,  the  law 
provides  that  if  the  plaintiff  cannot  get  the  property  by  his  distringas,  a 
casa  ovjifa  may  be  awarded  for  the  alternative  value.  These  executions 
ought  to  be  awarded  by  the  court  upon  motion,  of  which  motion,  however, 
there  need  be  no  notice  given  to  the  defendant.     5  Mun.  1G6. 

Thus  it  will  be  observed,  that  after  all,  there  is  even  in  detinue  no  writ 
of  execution  commanding  the  sheriff  to  take  the  property  if  to  be  found, 
which  is  surely  the  simplest  remedy.  The  distringas  only  takes  the  proper- 
perty  of  the  defendant  out  of  his  hands  until  he  delivers  the  property  of  the 
plaintiff.  Suppose,  then,  he  has  no  properly  of  his  own,  but  he  has  the 
property  which  the  plaintiff  has  recovered,  notoriously  in  his  possession. 
There  seems  to  be  no  remedy  by  which  the  property  itself  can  be  had,  un«- 
Jess  through  the  aid  of  a  court  of  chancery,  which  I  understand  has  beea 
considered  by  a  distinguished  jurist  as  a  proper  remedy.  See  3  Rand.  176. 
It  is  much  to  be  wished  that  the  legislature  would  simplify  the  procedure 
by  allowing  an  execution  for  the  property  itself,  in  addition  to  the  remedies 
now  existing. 

It  is  proper,  however,  that  the  student  should  be  here  reminded,  that  by 
a  recent  act,  the  bail  in  detinue  may  before  judgment  be  protected  by  an 
order  of  a  court  of  equity,  restraining  the  removal  of  the  property,  and  after 
judgment  he  is  empowered  to  Seize  it  wherever  it  may  be  found,  and  to  de- 
liver it  to  the  plaintiff  in  discharge  of  his  undertaking.  Sess.  Acts,  1826', 
ch.  2-2.  And  the  surrender  of  the  body  of  the  defendant  does  not  discharge 
the  bail  from  the  obligation  to  deliver  the  specific  thing,  unless  the  distrin- 
gas for  the  specific  thing  is  superseded  by  the  court. 

"  Execution  in  actions  where  money  only  is  recovered,  as  a  debt  or  da- 
mages, (and  not  any  specific  chattel,)  are  of  four  sorts  :  either  against  the 
body  of  the  defendant ;  or  against  his  goods  and  chattels  ;  or  against  his 
goods  and  the  profits  of  his  lands ;  or  against  his  goods  and  the  possession 
of  his  lands ;  and  any  of  these  various  kinds  of  executory  process  may  be 
sued  out  also  by  a  defendant  for  costs  against  a  plaintiff,  when  judgment 
has  been  rendered  in  his  favor  for  costs. 

"  1.  The  first  of  these  species  of  execution,  is  by  writ  oi  capias  ad  satis- 
faciendum ;  which  addition  distinguishes  it  from  the  former  capias  ad  re- 
spondendum, which  lies  to  compel  an  appearance  at  the  beginning  of  a  suit." 
According  to  Mr.  Blackstone,  this  execution  cannot  be  sued  out  against 
any  but  such  as  were  liable  to  be  taken  upon  the  original  capias.  This 
position  is  laid  down  too  broadly  perhaps,  though  it  is  sustained  by  the  case 
which  he  cites  from  3  Coke,  12.     But  be  this  as  it  may  at  the  common 


344  OF  THE  CASA.  [  book  3. 

law,  it  is  now  provided  by  our  statute,  1  R.  C.  cli.  128,  §  68,  that  a  party 
privileged  from  being  arrested  upon  a  capias  ad  respondendum,  may,  never- 
theless, be  taken  on  a  casa  after  a  ///a  has  been  returned  nulla  bona  by  the 
proper  oflicer  of  the  county  in  which  such  party  resides. 

The  intent  of  this  species  of  execution  is  to  imprison  the  body  of  the 
debtor  till  satisfaction  be  made  for  the  debt,  damages,  and  costs,  and  it  lies 
generally  against  all  persons  against  whom  judgment  is  obtained,  as  for 
their  own  debt,  except  that  certain  privileged  persons,  viz :  the  governor, 
members  of  counsel,  judges  of  the  superior  courts,  and  sheriffs,  are  exempt 
from  it  until  the  return  of  nulla  bona  on  a  fifa  against  them.  Thus,  even 
an  infant,  it  seems,  may  be  taken  upon  a  capias  ad  satisfaciendum.  2  Str. 
1217.  "  And,  if  an  action  be  brought  against  an  husband  and  wife  for  the 
debt  of  the  wile,  when  sole,  and  the  plaintiff  recovers  judgment,  the  capias 
shall  issue  to  take  both  the  husband  and  wife  in  execution  ;  but  if  the  ac- 
tion was  originally  brought  against  herself,  v/hen  sole,  and  pending  the  suit 
she  marries,  the  capias  shall  be  awarded  against  her  only,  and  not  against 
her  husband.  And  if  judgment  be  recovered  against  an  husband  and  wife 
for  the  contract  of  the  wife  during  her  coverture,  the  capias  shall  issue 
against  the  husband  only,  which  is  one  of  the  many  great  privileges  of  En- 
glish wives." 

Mr.  Blackstonc  goes  so  far  indeed  as  to  say,  that  if  judgment  be  reco- 
t^ered  against  husband  and  wife,  even  for  her  personal  misbehaviour  during 
the  coverture,  the  execution  shall  issue  against  the  husband  only.  But  this 
opinion  may  be  questioned,  particularly  in  those  cases  where  the  wife,  hav- 
ing a  separate  property,  is  as  to  that  sui  juris  ;  for  it  appears  that  where  a 
feme  commits  a  tort,  and  there  is  judgment  against  husband  and  wife,  she 
shall  be  taken  in  execution  as  well  as  the  husband,  and  shall  not  be  dis- 
charged unless  it  appear  that  the  plaintiff  and  her  husband  collude  to  keep 
her  in  prison.  See  2  Str.  1237.  1  Wils.  149.  2  Bl.  Rep.  720.  5  Barn, 
and  Aid.  759.  The  case  cited  by  Mr.  Christian  in  his  note  to  this  passage, 
from  3  Wils.  121,  is  not  sufficiently  explained  by  him.  In  that  case  the 
wife  was  not  in  execution,  but  was  surrendered  in  discharge  of  her  bail,  and 
so  (though  after  judgment)  was,  until  she  should  be  charged  in  execution, 
considered  as  being  in  prison  for  want  of  bail  upon  the  first  process.  Now 
the  distinction  clearly  is,  that  where  the  wife  is  in  custody  upon  mesne  pro- 
cess, she  may  be  discharged,  but  never  upon  final  process,  i.  e.  where  she 
is  in  execution.     See  the  case  itself,  3  Wils.  124. 

Members  of  the  general  assembly  have  a  qualified  exemption  from  exe- 
cution. This  exemption  is  not  confined,  indeed,  to  the  casa,  but  it  does 
not  extend  further  than  to  protect  them  and  their  property  during  their  at- 
tendance on  the  general  assembly,  and  one  day  before  and  after  for  every 
day  they  must  necessarily  travel  in  going  and  returning  from  their  residence 
to  the  place  of  session.  1  R.  C.  ch.  51,  §  31,  ch.  134,  §  11.  And  even  if 
actually  in  execution,  a  member  may  be  delivered  by  his  privilege,  during 
the  session,  though  a  failure  to  return  himself  a  prisoner  in  execution,  as 
soon  as  his  privilege  ceases,  will  render  him  liable  to  all  the  penalties  of  an 
escape. 

It  would  seem  too,  from  a  case  cited  from  Lord  Coke,  that  a  defendant 
was  discharged  from  a  capias,  because  he  was  of  so  advanced  an  age  quod 
■painam  imprisonamenti  subire  non  potest;  a  benevolent  principle,  which  I 
should  hope  would  not  be  renounced  under  the  mild  influence  of  modern 
opinions. 

I  have  already  said,  that  this  execution  only  lies  against  those  who  are 
liable  to  the  demand  as  for  their  own  debt.  And  hence,  executors  and  ad- 
ministrators are  not  liable  to  be  taken  upon  a  casa  where  the  judgment  is  to 
be  levied  de  bonis  testatoris.     But  where  the  judgment  is  rendered  against 


cttAP.  20.]  OF  THE  CASA.  345 

them  ill  an  action  of  debt,  euggesting  a  devastavit,  or  in  an  action  on  their 
administration  bond,  the  casa  issues,  because  in  these  cases  they  are  ad- 
judged to  be  personally  responsible,  by  reason  of  tlieir  having  been  guilty 
of  a  devastavit  of  the  personal  estate  of  their  testator,  which  was  entrusted 
to  them  for  their  administration. 

The  writ  of  capias  ad  satisfaciencum  is  an  execution  of  the  highest  na- 
ture, inasmuch  as  it  deprives  a  man  of  his  liberty,  till  he  makes  the  satisfac- 
tion awarded ;  and  therefore,  when  a  man  is  once  taken  in  execution  upon 
this  writ,  no  other  process  can  be  sued  out  against  his  lands  or  goods.  It 
is  however  provided,  by  statute  1  R.  C.  ch.  lo4,  §  8,  corresponding  with  an 
English  statute  of  the  reign  of  James  I.,  that  if  the  defendant  dies  in  exe- 
cution, the  plaintiff  may  sue  out  a  new  execution  against  his  lands,  goods, 
and  chattels,  but  not  so  as  to  effect  bona  fide  sales  of  lands  made  by  him 
after  judgment,  for  the  payment  of  any  creditors  at  whose  suit  he  may  have 
been  in  execution,  if  the  proceeds  of  sale  be  paid  or  secured  to  be  paid  to 
such  creditor,  with  his  privity  in  discharge  of  his  demand  or  some  part 
thereof. 

This  execution  is  directed  to  the  sheriff,  commanding  him  to  take  the 
body  of  the  defendant,  and  have  him  before  the  judges  or  justices,  as  the 
case  may  be,  at  the  day  named  as  the  return  day,  to  sntisfy  the  plaintiff  the 
sum  of,  &c.,  which  the  plaintiff  hath  recovered,  &c.  When  it  is  levied,  the 
defendant  may  at  once  make  satisfaction  and  discharge  himself  by  pay- 
ment to  the  sheriff.  If  he  does  not,  he  must  remain  in  custody  until  he 
does  ;  but  at  whatever  time  he  chooses  to  make  satisfaction,  he  is  entitled, 
to  his  discharge.  It  must  be  added,  however,  that  by  the  laws  of  Virginia, 
this  satisfaction  is  allowed  to  be  made  in  a  manner  not  recognized  by  the 
common  or  statute  law  of  England.  For  it  is  provided  1  R.  C.  ch.  134,  § 
28,  that  a  debtor  who  is  taken  on  a  casa,  may  tender  to  the  officer  serving 
it,  slaves  or  other  personal  property  to  the  amount  of  the  execution  ;  whicli 
the  officer  is  directed  to  dispose  of  as  goods  taken  under  a  fifa,  and  on  re- 
ceiving it  he  is  commanded  to  discharge  the  debtor  from  custody.  This 
humane  provision  is  well  guarded  by  a  clause,  which  authorises  a  new  casa 
or  fifa,  if  the  property  shall  upon  a  sale  prove  insufficient ;  and,  moreover, 
if  the  property  tendered  was  encumbered,  the  privilege  of  discharging  him- 
self, when  taken  on  a  second  casa  by  again  tendering  property,  is  taken 
away.  These  provisions  are,  as  I  have  said,  entire  innovations  upon  the 
English  law.  They  form  an  exception  to  the  general  rule  of  that  law,  that 
the  debtor  must  remain  in  custody  until  he  pays  the  debt. 

It  is  obvious  that  a  tender  to  the  sheriff  by  the  defendant,  of  property 
which  does  not  belong  lo  him,  does  not  entitle  the  sheriff  to  discharge  him. 
Yet  there  are  certain  questions  somewhat  analogous,  on  which  we  have  no 
adjudication.  As  where  the  sheriff  took,  in  discharge  of  the  body,  proper- 
ty which  was  encumbered  to  the  full  value,  with  lull  knowledge  thereof. 
Here  I  should  conceive  he  would  be  liable  for  the  discharge  of  the  body, 
though  the  act  provides  for  a  new  execution.  AVhether  he  would  be  liable 
without  such  actual  knowledge,  from  the  implied  notice  derived  from  the 
deed  of  incumbrance  being  recorded,  may  be  more  questionable. 

When  the  defendant  has  tendered  property  which  the  sheriff  has  accept- 
ed, the  defendant  is  immediately  to  be  discharged.  If  the  sheriff,  on  the 
one  hand,  refuse  to  discharge  him  after  such  tender  of  sufficient  property, 
he  renders  himself  liable  to  an  action  of  false  imprisonment,  ami  the  de- 
fendant may,  perhaps,  discharge  himself  by  habeas  corpus.  On  the  other 
hand,  he  is  not  bound  to  discharge  the  parly,  unless  property  to  the  value  of 
the  debt  and  costs  be  tendered.  As  this  value  can  only  be  certainly  known 
alter  a  sale,  some  latitude  must  of  necessity  be  allowed  to  the  officer,  nor 
would  he  be  deemed  liable,  I  conceive,  (if  in  the  event  he  proved  to  be 
VOL.  2—U 


846  ESCAPES.  [  BOOK  3^. 

mistaken  in  the  estimated  value,)  either  to  the  plaintiff  in  the  execution,  for 
deficiency,  or  to  the  del'endant  for  requiring  a  surrender  of  too  much,  provi- 
ded he  does  not  appear  to  have  acted  unfairly  or  oppressively. 

With  the  property  tendered  in  discharge  of  the  body,  the  sheriff  proceeds 
as  if  it  had  been  taken  on  a.  fifa,  so  that  it  may  be  restored  to  the  defendant 
on  his  giving  a  delivery  bond,  and  the  sheriff  may  even  appoint  a  day  of 
sale  posterior  to  the  return  day,  and  may  take  a  forthcoming  bond  after  the 
return  day.     See  3  Mun.  308. 

It  may  be  here  observed,  that  ordinarily,  though  this  form  of  proceeding 
is  preserved,  a  shorter  course  is  actually  taken.  For  as  the  defendant  may 
first  relieve  the  body  by  tendering  property,  and  may  then  relieve  the  pro- 
perty tendered  by  giving  a  delivery  or  forthcoming  bond,  with  security,  for 
the  production  of  the  property  at  the  day  of  sale,  the  usual  mode  is  to  give 
the  bond  without  any  actual  surrender  of  property,  although  property  is 
mentioned  in  the  condition  as  having  been  taken  by  the  execution,  and  re- 
stored upon  giving  the  bond.  And  the  parties  are  estopped  by  their  seals 
from  denying  that  property  was  surrendered  in  discharge  of  the  body,  or  that 
it  was  the  defendant's  property. 

The  manner  in  which  a  casa  must  be  levied,  or  what  amounts  to  a  levy, 
I  propose  to  consider  in  connexion  with  the  doctrine  of  escapes,  which  I 
now  proceed  to  investigate.  And  here  it  may  be  remarked,  that  with  this 
statutory  exception  above  mentioned,  "  when  a  defendant  is  once  in  cus- 
tody upon  this  process,  he  is  to  be  kept  in  arcia  et  salva  ciistodia  :  and  if  he 
be  afterwards  seen  at  large,  it  is  an  escape  :  and  the  plaintiff  may  have  an 
action  thereupon  against  the  sheriff  for  his  whole  debt.  For  though,  upon- 
arrests,  and  what  is  called  7nesne  process,  being  such  as  intervenes  between 
the  commencement  and  end  of  a  suit,  [the  sheriff  by  permitting  the  defend- 
ant to  go  at  large,  only  places  himself  in  the  situation  of  special  bail  under 
our  recent  act,  yet  upon  a  taking  in  execution  if  he  gives  such  indulgence 
he  becomes  liable  for  the  debt  itself;]  see  2  Wilson,  295.  5  T.  R.  Plank 
vs.  Anderson  ;  for,  in  that  case,  confinement  is  the  whole  of  the  debtor's 
punishment,  and  of  the  satisfaction  made  to  the  creditor.  Escapes  are 
either  voluntary  or  negligent.  Voluntary  are  such  as  are  by  the  express 
consent  of  the  keeper:  after  which  he  can  never  retake  his  prisoner  again, 
(though  the  plaintiff  may  retake  him  at  any  time,)  2  Leigh,  Windrum  vs. 
Paiker,  but  the  sheriff  must  answer  for  the  debt.  Negligent  escapes  are 
where  the  prisoner  escapes  without  his  keeper's  knowledge  or  consent ; 
and  then  upon  fresh  pursuit  the  defendant  may  be  re-taken,  and  the  sheriff 
shall  be  excused,  if  he  has  him  again  before  any  action  brought  against  him- 
self for  the  escape.  A  rescue  of  a  prisoner  in  execution,  either  going  to 
gaol  or  in  gaol,  or  a  breach  of  prison,  will  not  excuse  the  sheriff  from  being 
guilty  of  and  answering  for  the  escape  ;  for  he  ought  to  have  sufticicnt  force 
to  keep  him,  since  he  may  command  the  power  of  the  county."  In  order, 
however,  more  fully  to  comprehend  this  complicated  doctrine  of  escapes, 
I  propose  to  consider  the  subject  under  two  heads. 

I.   What  constitutes  an  arrest.     2.   What  is  an  escape. 

1.  AVhat  is  an  arrest.  This  inquiry,  it  is  obvious,  is  material  before  we 
enter  upon  the  other,  since,  until  there  has  been  an  arrest,  there  can  be  no 
esca])e.  An  arrest  consists  of  the  apprehending  or  restraining  one's  per- 
son by  process,  in  execution  of  the  command  of  some  court  or  officer  of 
justice.  Wood's  Inst.  575.  But  this  apprehension  or  restraint  cannot 
consist  of  bare  words;  for  there  must  be  an  actual  touching  of  tho  person, 
or  (which  is  tantamount)  a  power  of  taking  immediate  possession  of  him, 
and  his  submission  thereto.  1  Lill.  Abr.  9G.  1  Salk.  79.  Thus  if  the  of- 
ru;(M-  in  ihc  execution  of  process  touches  tiie  defendant,  it  is  an  arrest.  1 
Salk.  79.     So  where  he  has  a  writ  against  him,  and.  finding  him  in  a  room, 


CHAP.  20.]  ESCAPES.  347 

enters  it  and  locks  the  door  upon  him,  saying  to  him,  you  are  my  prisoner, 
this  is  an  arrest,  for  he  is  in  his  power.  So  if  he  meets  him  on  horseback, 
and  says  to  him,  you  are  my  prisoner,  and  he  turns  back  with  the  officer 
and  submits  to  go  with  him,  this  is  an  arrest,  tliough  lie  was  never  touched. 
1  Carr.  &  Payne,  153.  But  if  on  the  officer's  saying  these  words  he  fled, 
there  was  no  arrest  unless  he  had  actually  laid  hold  of  him.  IBull.  N.  P« 
62.  Yet  the  officer  need  not  himself  be  the  person  that  arrests  ;  for  if  he 
has  followers  or  assistants  with  him,  as  he  may  have,  (Bac.  Sheriff",  H.  4,) 
and  he  is  in  company,  the  arrest  is  good  if  made  by  one  of  his  followers, 
though  he  be  at  some  distance  and  out  of  sight,  provided  he  be  so  near  as 
to  be  acting  in  the  arrest.  Cow.  64.  If  an  officer  lays  hold  of  the  priso- 
ner's hand,  as  he  holds  it  out  of  a  window,  this  is  an  arrest,  and  he  may 
afterwards  even  break  open  the  house  to  get  at  him  and  carry  him  away. 
]  Vent.  -306.  Lastly,  if  A  is  in  custody  of  B  upon  process  at  the  suit  of 
C,  and  a  writ  or  execution  at  the  suit  of  D  comes  into  his  hands,  A  is  at 
once  deemed  to  be  arrested  or  in  his  custody  at  the  suit  of  D.  Dalt.  561. 
1  Salk.  274.     Buller's  N.  P.  66. 

It  is  not  my  purpose  here  to  enter  into  the  consideration  of  what  the  of- 
ficer may  do  in  the  execution  of  process.  But  it  is  proper  under  this  head 
to  observe  that  the  officer  must  have  a  writ  at  the  time  of  the  arrest.  Bac. 
Sheriff.  I  do  not  find  whether  it  is  necessary  it  should  be  about  his  person. 
He  need  not  shew  it.  And  the  arrest  must  be  made  within  his  bailiwick; 
so  that  if  a  party  be  arrested  out  of  the  county  whereof  the  sheriff  is  offi- 
cer, it  is  a  void  act,  and  he  is  liable  to  the  defendant  as  a  trespasser,  but 
not  to  the  plaintiff  in  the  esecution  for  any  escape  of  the  delcndant. 

2.  What  is  an  escape. 

I  think  we  may  properly  divide  escapes  into  constructive  or  actual.  By 
constructive  escapes  I  would  be  understood  to  mean  those  where,  though  the 
party  is  not  really  at  large,  the  officer's  legal  power  over  him  has  ceased  by 
his  own  act.  As  if  the  sheriff  of  Frederick,  in  taking  his  prisoner  to  gaol, 
should  carry  him  through  the  county  of  Jefferson.  The  instant  he  passes 
the  line  between  the  counties,  his  prisoner  is  no  longer  legally  in  his  cus- 
tody. Any  farther  detention  of  him  would  be  a  trespass.  For  a  sheriff 
has  no  jurisdiction  out  of  his  own  county;  Dalt.  141  ;  though  if  on  an  ha- 
beas corpus,  ^:c.,  the  sheriff  is  commanded  to  bring  a  prisoner  out  of  his 
own  county,  and  in  doing  so  he  is  obliged  to  go  through  several  other  coun- 
ties, to  this  special  purpose  his  authority  extends  to  them.  So  if  the  priso- 
ner escape  and  fly  into  another  county,  the  sheriff  or  his  officers  may  make 
fresh  pursuit,  and  may  take  him  in  the  other  county.     Dalt.  22,  23.     Plow. 

There  are  several  other  instances,  in  England,  in  which,  by  construction 
of  law,  an  escape  takes  place,  though  the  party  is  still  in  confinement. 
Thus  if  the  keeper  of  the  Fleet  prison  were  to  be  taken  in  execution  and 
committed  to  his  own  prison  without  first  securing  the  other  prisoners 
there,  it  would  be  an  escape  in  them  all,  and  he  would  of  course  be  liable 
therefor.  Style,  465,  Dalt.  487.  Hence  the  king's  bench  refused  to  issue 
a  casa  against  hinj.  Ibid.  So  if  a  woman  (warden  of  the  Fleet)  marries 
her  prisoner,  or  if  the  sheriff  marries  a  woman  in  execution  with  him,  in 
either  case  there  is  an  escape  in  law.     Plow.  17. 

The  following  case,  I  conceive,  may  arise  in  Virginia.  If  a  party  is  in 
execution  and  is  appointed  sheriff,  and  is  qualified,  unless  he  is  turned  over 
to  the  coroner,  it  is,  I  conceive,  nn  escape  for  which  his  predecessor  is  lia- 
ble ;  for  the  sheriff  is  ex  officio  master  of  the  gaol,  and  the  gaoler  but  his  ser- 
vant, and  he  cannot  be  a  prisoner  to  himself.  A  case  of  this  description 
has  actually  occurred,  though  tiae  legal  questions  arising  out  of  it  never  were 
brought  before  any  court 


348  ESCAPES,  [boox3. 

If  a  man  halh  judgment  against  two  person-?,  and  l)Otli  are  taken  in  exe- 
cution, if  the  sheriff  suffer  one  to  escape,  he  shall  be  answerable  for  the 
whole  debt,  though  the  other  is  in  custody.  So  of  execution  against  baron 
and  feme,  where  the  feme  only  escapes.     Bac.  Escapes,  B.  3. 

When  a  sheriff  hath  taken  a  prisoner  in  execution,  he  may  on  his  way 
to  the  public  gaol,  confine  him  in  any  private  house,  and  if  he  does  so  he 
is  not  liable  for  an  escape.  But  it  is  said  if  he  carry  him  round  about  a 
great  way  for  the  accommodation  of  the  prisoner,  it  is  an  escape,  for  he  is 
bound  to  bring  him  in  convenient  time,  and  the  most  convenient  way,  (Mod. 
116.  Dalt.  5(31,)  a  strictness  that  would  not  be  very  readily  indulged  pro- 
bably at  this  day. 

Every  county,  it  hath  been  said,  had  at  common  law  two  sorts  of  gaols; 
one  for  matters  of  the  crown,  and  the  other  for  prisoners  taken  on  process  ; 
and  this  last  the  sheriff  "  may  appoint  in  any  house  or  where  he  pleases." 
See  5  T.  R.  39.  Bac.  Sheriff,  H.  5  Salk.  408.  But  he  could  not  impri- 
son the  defendant  in  the  defendant's  own  house,  for  that  would  be  an  es- 
cape, as  the  defendant  is  absolute  master  of  it.  Dalt.  216.  That  this  was 
originally  the  law,  must,  I  presume,  be  admitted;  for  public  gaols,  except 
for  culprits,  arc  creatures  of  the  statutes,  and  were  not,  I  believe,  known  to 
the  common  law.  Several  statutes  have  been  made  during  the  late  reigns 
to  prevent  the  abuse  of  carrying  prisoners  to  spunging  houses,  as  they  are 
called,  but  they  are  not  in  force  here.  Yet  it  seems  to  be  generally  under- 
stood that  the  sheriff  is  not  justified  in  keeping  his  prisoner  confined  else- 
where than  in  the  county  gaol,  except  so  far  as  such  confinement  is  neces- 
sary while  he  is  on  the  way  in  carrying  him  to  the  common  gaol.  This  in- 
ference would  seem  to  be  justified,  not  only  by  the  general  aspect  of  our 
laws,  but  by  the  special  provisions  allowing  the  party  the  benefit  of  the 
bounds,  which  are  to  be  laid  off  by  the  order  of  the  county  court.  Nor  is 
there  usually  any  difficulty  as  to  this  matter.  But  cases  have  occurred  and 
may  occur  of  very  great  embarrassment.  Thus  we  have  seen  that  ihe  she- 
riff is  the  master  of  the  county  gaol,  and  yet  that  an  execution  can  issue 
against  his  body,  after  a  fij'a  returned  no  goods.  This  execution  must  be 
directed  to  the  coroner,  if  there  be  one,  or  to  any  constable  if  there  be  no 
coroner.  Sess.  Acts,  1825.  See  4  Ran.  256.  If  the  coroner  or  consta- 
ble take  the  sheriff,  where  shall  he  be  imprisoned  ?  Surely  not  in  the  coun- 
ty gaol,  for  that  would  bo  an  escape,  as  he  is  absolute  master  of  it,  and  may 
even  turn  the  gaolor  out  of  doors  at  his  pleasure.  See  Bac.  Sheriff,  H.  5. 
On  a  habeas  corpus  presenting  this  case,  it  was  contended  that  the  consta- 
ble could  not  confine  the  sheriff  any  where  but  in  his  own  gaol.  The  court 
inclined  to  a  different  opinion,  but  the  prisoner  was  discharged  on  other 
grounds.  In  such  case  had  a  bounds-bond  been  tendered,  the  officer  should, 
I  conceive,  have  carried  his  prisoner  within  the  bounds,  on  receiving  the 
bond,  and  given  him  the  liberty  of  them.  Many  difficulties,  however,  are 
connected  with  this  opinion,  though  it  srenis  the  least  liable  to  objection. 

A  member  of  assembly  taken  in  execution  may  be  delivered  by  privilege 
from  execution  during  tlic  session,  and  this  will  be  no  escape.  But  if  he 
fails  to  return  himself  a  prisoner  in  execution  so  soon  as  his  privilege  ceases, 
he  is  liable  to  the  penalties  of  an  escape.      1  R.  C.  cli.  51,  §  .31. 

Actual  escapes  are  where  a  person  legally  arrested,  either  violently  or 
privily  violates  his  arrest,  or  is  suffered  to  go  at  large  voluntarily,  or  by  the 
negligence  of  the  officer. 

It  may  not  be  amiss  to  mention  here  somewhat  more  particularly  what 
constitute  these  actual  escapns.  Thus  if  after  process  of  execution  exe- 
cuted, and  before  the  prisoner  is  committed  to  gaol,  the  gaoler  permits  him 
to  go  about  his  own  business,  free  from  constraint,  and  so  that  he  is  not 
within  his  power,  this  would  be  an  escape.     And  so  after  he  is  once  com- 


CHAP.  20.]  ESCAPES.  349 

Knitted  to  prison,  if  he  goes  ont  of  tlic  limits  of  iho  go:il  ever  so  little,  or 
for  ever  so  sliort  a  time,  it  is  an  escnpe ;  Bar,.  Escape,  B. ;  and  this  though 
the  keeper  he  with  him,  and  even  have  hold  of  him  ;  for  after  the  party  is 
once  committed  to  gaol,  the  gnolor  has  no  right  to  permit  him  to  go  beyond 
it  except  in  case  of  fire,  or  where  he  is  directed  by  some  conipet(?nt  autho- 
rity; for  were  it  otherwise,  by  connivance  a  wealthy  man  might  thus  in  ef- 
fect avoid  the  effects  of  imprisonment,  by  paying  the  gaolor  for  attending 
him  wherever  he  might  choose  to  go  for  business  or  pleasure ; — and  thus, 
as  chief  justice  Wilmot  observes,  (2  VVils.  295,)  every  goalor  would  soon  let 
his  prisoners  go  at  large  as  much  as  if  they  were  never  arrested. 

Nor  is  the  term  escape  confined  to  the  breaking  gaol,  for  if  the  defendant 
has  given  security  for  the  prison  rules,  as  will  be  hereafter  explained,  it  is 
an  escape  if  he  wilfully  goes  beyond  their  limits. 

These  escapes,  as  Mr.  Blackstone  tells  us,  are  either  voluntary  or  negli- 
gent, the  difference  between  which  is  sufficiently  explained  by  him.  It  is 
not,  perhaps,  practicable  to  lay  down  any  general  rule  as  to  what  shall  be 
evidence  of  such  consent  on  the  part  of  the  gaoler,  as  will  make  a  volun- 
tary escape.  We  find  it  contended  that  his  putting  the  prisoner  into  a 
room  manifestly  insecure,  will  amount  to  it.  2  T.  R.  130.  Where  the  es- 
cape is  voluntary,  it  seems  to  have  been  sufficiently  established  by  the  En- 
glish cases,  that  the  gaoler  has  no  right  to  retake  him,  (Dalt.  138.  2  Wils. 
295.  5  T.  R.  25,)  and  that  if  lie  does,  and  commits  him  to  prison,  he  is 
liable  to  an  action  of  trespass  on  the  part  of  the  prisoner.  But  it  was 
otherwise  if  the  escape  was  tortious.  Dalt.  113.  See  Bac.  Escape,  C. 
Indeed,  at  one  time  it  seems  to  have  been  thought  he  was  discharged  of  the 
debt,  but  it  has  long  been  settled  that  the  creditor  may  retake  him,  and  even 
if  he  be  wrongfully  retaken  by  the  sheriff  who  let  him  escape,  and  be  turn- 
ed over  to  the  succeeding  sheriff,  he  cannot  demand  his  discharge  of  him, 
or  sue  him  for  illegal  detention.  Bac.  Escape,  E.  For  from  the  moment 
the  sheriff  or  gaoler  permits  a  voluntary  escape,  he  commits  a  tnrt  which 
no  subsequent  matter  can  purge.  Windrum  vs.  Parker,  2  Leigh.  1  Saun. 
35,  a.  note  1.  But  the  plaintiff  may  retake  the  party,  though  the  gaoler 
cannot,  2  Wils.  295.  How  far  our  act  of  assembly  which  authorizes  ge- 
nerally an  escape  warrant  to  issue  on  the  application  of  the  sheriff  as  well 
as  of  other  persons,  without  distinguishing  between  voluntary  and  negligent 
escapes,  may  have  altered  the  principle  here  spoken  of,  has  not  been  de- 
cided by  our  courts. 

As  to  negligent  escapes,  they  may  be  said  to  comprehend  generally  all 
cases  which  do  no  not  amount  to  voluntary  escapes  on  the  one  hand,  or  in 
which  the  officer  is  not  justified  on  the  other.  The  causes  of  justification, 
therefore,  may  here  most  properly  be  inquired  into.  These  are  where  the 
officer  has  acted  either  under  authority  of  some  competent  power,  or  the 
escape  has  been  from  unavoidable  accident,  or  thd  secret  act  of  the  priso- 
ner, without  default  in  the  gaoler.  The  removal  of  a  prisoner  out  of  gaol 
pursuant  to  any  writ  of  habeas  corpus,  is  an  instance  of  the  first  species  of 
justification.  The  gaol  being  on  fire,  and  the  prisoners  thereby  escaping, 
or  being  actually  turned  out  of  necessity,  to  prevent  their  destruction,  or 
being  set  at  large  by  the  forces  of  a  foreign  enemy,  afford  instances  of  the 
second  kind.  But,  after  an  arrest  on  a  casa,  the  sheriff  cannot  defend 
himself  by  alleging  that  the  party  was  rescued  either  before  or  after  he  was 
committed  to  prison;  for  on  his  way  to  the  prison  he  may  raise  the  posse 
comitatiis,  and  thus  secure  the  prisoner  from  rescue  ;  and  as  to  the  gaol  be- 
ing broken,  he  may  sue  the  rescuers.  Bac.  Escape,  H.  As  to  the  third 
kind  of  justification,  if  the  prisoner  escaped  without  the  knowledge  or  con- 
sent of  the  gaoler,  and  the  gaoler  made  fresh  pursuit,  and  the  defendant  be 
re-taken   before  action  brought  against  him,  this  will  excuse  him.     Ibid. 


350  ESCAPES.  [  BOOK  3. 

What  is  fresh  parsult  must  depend  on  the  circunrstances  of  each  case.  A 
escapes  by  negligence  of  the  keeper,  but  without  his  knowledge,  and  ia 
absent  a  day  and  a  night  without  his  knowing  it,  yet  if,  upon  discovering 
it,  he  forthwith  pursued,  it  is  held  good.  Dalt.  5(5:2.  And  it  is  by  no  means 
necessary  that  it  should  appear  that  the  gaoler  never  lost  sight  of  the  pri- 
soner, in  order  to  constitute  fresh  pursuit.  Ibid.  Where,  however,  there 
is  either  a  voluntary  or  negligent  escape,  and  no  fresh  pursuit,  the  officer 
is  liable  if  it  appears  the  prisoner  might  have  been  retaken. 

And  here  it  may  be  i)roper  to  observe,  that,  on  account  of  the  insecurity 
of  our  gaols,  our  law  has  provided  that  the  officer  shall  not  be  chargeable, 
unless  the  jury  who  shall  try  the  issue  shall  expressly  find  that  such  debtor 
or  prisoner  escaped  with  the  consent  or  through  the  negligence  of  the  of- 
ficer, OR  that  he  might  have  been  retaken,  and  that  the  officer  neglected  to 
make  immediate  pursuit,  i  R.  C.  ch.  KiO,  §  3.  And  if  the  verdict  be  gene- 
ral, instead  of  in  the  explicit  form  here  required,  it  will  not  warrant  a  judg- 
ment on  it.  1  W.  4.  lMun.50].  The  proof  of  escape  lies  on  the  plain- 
tiiT; — proof  of  its  being  tortious,  and  proof  of  fresh  pursuit,  lie  on  the  she- 
riff.    1  W.  4. 

A  volunianj  return  of  the  prisoner  before  action  brought,  is  equal  to  a  re- 
taking upon  fresh  pursuit;  2  T.  R.  i*2(3 ;  and  this,  Mr.  Blackstone  tells  us, 
is  an  excuse.  It  is  not  an  excuse,  however,  in  case  of  a  voluntary  escape. 
Under  a  count  for  a  voluntary  escape,  evidence  of  a  negligent  escape  may 
he  given.     Ibid. 

We  proceed  next  to  set  forth  more  particularly  the  provision  of  our  act 
of  assembly  on  the  subject  of  escapes,  1  R.  C.  ch.  13(5^ 

By  the  first  clause  of  ihe  first  section  of  this  act  it  is  provided  that  where 
a  person  in  custody  either  upon  mesne  process  or  execution  shall  escape, 
■upon  affidavit  thereof,  it  shall  be  lawful  for  any  justice  of  the  peace  of  the 
county  where  he  was  imprisoned,  to  grant  any  one  demanding  the  same  an 
escape  v/arrant  directed  to  all  sheriffs,  &.c.  within  the  commonwealth,  re- 
ciling  the  cause  of  commitment  and  time  of  the  escape,  and  commanding 
them  to  retake  him  and  carry  him  to  the  prison  of  the  county  or  corpora- 
tion where  he  shall  be  retaken  to  be  kept  until  discharged'  by  due  course  of 
law.  The  warrant  when  executed  is  to  be  returned  to  the  court  of  the 
county  where  the  defendant  escaped. 

Here  observe,  1.  That  this  clause  extends  to  mesne  process  as  well  as  to 
executions.  2.  That  though  it  provides  that  it  "  shall  be  lawful  for  any 
justice  to  grant  the  warrant,"  yet  this  is  to  be  interpreted  asmandatory,  ac- 
cording to  the  rule  of  construction  laid  down  in  a  former  lecture.  3.  The 
warrant  may  be  granted  to  a7iy  one  demanding  the  same.  This  broad  ex- 
pression is  used  to  embrace  the  case  of  all  persons  whatever  who  may  be 
interested  in  the  retaking.  Thus  the  creditor  may  sue  out  the  escape 
warrant,  for  it  may  be  necessary  to  secure  his  debt  :  the  sheriff  or  gaoler 
may,  for  if  the  defendant  was  in  execution  they  would  be  liable  for  the 
debt;  and  even  if  he  was  in  custody  upon  mesne  process  they  might  be 
rendered  liable  in  case  the  debt  should  be  lost  by  the  escape.  So,  too,  the 
securities  of  the  debtor  for  keeping  the  prison  rules  (if  he  was  not  in  close 
custody  but  had  the  liberty  of  the  rules)  are  also  interested  in  his  being  re- 
taken, and  are  therefore  empowered  to  sue  out  the  warrant.  4.  The  war- 
rant is  directed  generally  to  all  sheriffs,  Serjeants,  bailiffs,  and  constables 
within  the  commonwealth,  each  of  whom  may  seize  the  fugitive  if  to  be 
found  in  the  officer's  own  bailiwick — but  he  cannot  seize  him  elsewhere, 
and  he  must  also  at  th.;  time  of  seizure  have  the  warrant  in  his  possession 
as  his  authority.  5.  The  cause  of  commitment  must  be  recited,  because 
the  course  to  be  pursued  by  the  retaking  officer  depends  upon  it,  as  is  seen 
in  the  following  clause.     6.  The  debtor  ia  not  to  be  carried  back  to  the 


CHAP.  20.]  PRISON  RULES.  851 

county  whence   he  escaped,  but  he  is  to  be  commitfed  to  the  gaol  of  the 
county  where  he  was  retaken.     To  return  however  to  the  act  itself. 

By  the  following  clause  of  this  section,  it  is  provided,  that  if  the  debtor 
was  in  execution  when  he  escaped,  he  shall  be  so  kept  in  execution  in  the 
gaol  of  the  county  where  he  was  retaken,  until  he  pays  the  debt,  or  the  judg- 
ment is  reversed,  or  he  is  discharged  by  due  course  of  law  ;  one  of  the 
m^ans  of  effecting  which  is,  by  taking  the  insolvent  oath. 

If  he  escaped  out  of  custody  upon  mesne  process,  upon  the  return  of  the 
warrant  shewing  that  he  has  been  retaken,  the  plaintitf  may  file  his  decla- 
ration in  the  court  ichere  the  suit  teas  brought,  and  that  court  may  proceed  to 
give  him  a  judgment,  as  in  case  of  appearance  and  refusal  to  plead,  uniess 
the  defendant  shall  give  special  bail,  and  immediately  plead  to  issue.  Up- 
on giving  such  bail  the  fact  must  be  certified  to  the  ofhcer  in  whose  custo- 
dy he  is,  who  thereupon  must  discharge  him.  Thus  we  perceive  that  the 
suit  may  be  tried  in  one  county,  while  the  defendant  is  in  close  gaol  in 
another.  It  is  to  be  observed,  also,  that  there  is  no  provision  permitting  the 
defendant  to  plead  in  custody.  The  permission  to  plead'  seems  to  be  only 
on  condition  of  giving  bail. 

By  the  second  section  of  this  act,  it  is  provided,  that  when  any  person  in 
execution  who  shall  have  obtained  liberty  of  the  prison  rides,  by  giving  se- 
curity to  keep  within  them,  according  to  the  provision  of  the  act  on  that, 
subject,  shall  escape  and  go  out  of  the  prison  rules,  the  sheriff  or  other  of- 
ficer of  the  county  or  corporation  where  the  prisoner  was  in  custody,  shall. 
immediately  apply  to  a  justice  of  peace  for  an  escape  warrant,  and  give  no- 
tice to  the  creditor  of  the  escape,  and  assign  over  the  bounds-bound,  which 
the  creditor  is  obliged  to  receive,  and  may  then  proceed  to  have  the  prison- 
er retaken  according  to  the  directions  of  the  first  section. 

Before  we  proceed  to  comment  on  the  particular  provisions  of  this  clause^. 
it  is  proper  to  advert  to  the  statutory  regulations  concerning  prison  rules. 

By  1  R.  C.  ch.  71,  §  18,  every  county  court  is  empowered  and  required' 
to  lay  out  the  bounds  and  rules  of  their  county  and  corporation  prisons, 
not  exceeding  ten  acres,  and  every  prisoner  not  committed  for  treason  or 
felony,  giving  good  security  to  keep  within  the  rules,  shall  have  liberty  to 
walk  therein  out  of  the  prison,  and  "keeping  continually  within  the  bounds, 
shall  be  adjudged  inlaw  a  true  prisoner."  But  this  privilege  is  to  continue 
by  the  act  1  R.  C.  ch.  134,  §  30,  only  for  one  year,  within  which  time  it  is 
presumed  the  prisoner  may  so  arrange  his  affairs,  as  to  psy  the  debt,  or  sur- 
render his  property  as  an  insolvent  debtor.  At  the  end  of  one  year  he  must 
return  to  close  gaol,  or  he  will  be  treated  as  a  prisoner  upon  an  escape.  The 
sheriff  is  indeed  bound  to  recommit  him,  or  he  will  be  subject  to  a  fine.  The 
recommitment  discharges  the  securities. 

In  the  execution  of  the  act  for  laying  out  the  rules,  the  justices  exercise 
the  discretion  vested  in  them,  so  as  to  suit  the  convenience  of  prisoners  as 
far  as  possible,  comprehending,  where  it  may  be  done,  the  court-house, 
clerk's  office,  and  public  houses,  and  sometimes  changing  the  rules  so  as  to 
embrace  the  dwelling  of  some  unfortunate  man  who  may  be  in  confine- 
ment;  a  humane  and  laudable  course,  in  the  spirit,  and  indeed  within  the 
letter  of  the  act.  The  prison  rules  with  us  are,  I  imagine,  not  very  differ- 
ent from  the  prison  rules  in  England.  There  are  said  to  be  certain  limits 
without  the  walls  of  the  prison,  within  which  the  prisoner  is  allowed  to- 
live.     Jac.  L.  Diet.  Rules. 

The  bond  which  is  thus  given  by  the  prisoner  for  keeping  the  prison- 
rules,  must  be  taken  to  the  sheriff  and  his  successors  in  office,  and  as  the 
defendant  is  still  "a  true  prisoner"  in  the  eye  of  (he  law,  he  should  be 
transferred  as  such  by  the  sheriff' to  his  successor.  1  Mun.76.  The  bond 
should  in  the  condition  puxsue  the  terras  of  the  law  very  strictly.     4  H.  & 


352  ESCAPES.  [book  3. 

M.  277.  Yet  it  is  good  as  a  common  law  bond,  though  taken  to  the  plain- 
tiff.     1  Mun.  501. 

Ill  an  action  on  this  bond,  the  plaintiff  is  only  required  to  shew  a  depar- 
ture trom  the  rules.  If  it  is  alleged  that  the  prisoner  was  discharged  by  due 
CDurse  oi'law,  the  onus  probandi  lies  on  the  defendants.      1  Mun.  7(5. 

If  the  bond  be  void,  as  improperly  taken,  the  plaintiff  may  sue  the  sheriff. 
1  Mun.  501.  And  if  it  be  ndjudged  void  by  an  inferior  court  in  a  suit 
against  the  securities,  the  creditor  may  maintain  his  action  against  the  sheriff 
without  having  appealed  to  a  superior  tribunal.  And  the  sheriff  is  bound 
by  that  judgment,  and  cannot  gainsay  it,  (i  Mun.  501,)  for  he  is  a  privy 
though  not  a  party. 

After  this  succinct  account  of  the  prison  rules,  and  of  the  bounds-bond, 
we  a;fain  recur  to  the  second  section  of  the  act  concerning  escapes.  In 
considering  that  clause  of  the  section  which  has  been  already  quoted,  you 
will  observe,  1.  That  this  section  of  the  act  excludes  the  case  of  escapes  of 
persons  on  mesne  process,  not  only  by  confining  the  terms  of  the  clause 
to  persons  in  execution,  but  also  by  the  very  object  of  its  provisions  ;  for  2d, 
This  section  relates  only  to  escapes  of  prisoners  having  the  benefit  of  the 
rules ;  whereas  the  first  section  relates  (^and  perhaps  only)  to  escapes  from 
close  prison.  3.  The  law  in  this  case  is  imperative  upon  the  sheriff  to  sue 
out  the  escape  warrant,  which,  without  this  command,  he  might  not  have 
done,  as  he  ceased  to  be  responsible  for  the  custody  when  the  bond  was 
given.  4.  The  creditor  must  receive  the  bond,  and  may  proceed  to  retake 
the  prisoner  also. 

By  the  subsequent  part  of  the  second  section  it  is  further  provided,  that 
if  the  debtor  je  retaken,  the  securities  shall  be  discharged ;  and  that  the 
sheriff  shall  not  be  answerable  for  the  debt,  in  case  of  an  escape  from  the 
rules,  unless  the  securities  were  insuflicient  when  the  bond  was  given. 
Moreover  it  is  provided,  that  the  creditor  may  proceed  to  prosecute  the 
bounds-bond  on  the  escape  of  the  debtor  if  he  is  not  retaken,  notwith- 
standing he  may  have  applied  for  an  escape  warrant. 

Thus  we  may  observe  that  the  rules  are  as  a  prison  to  the  prisoner,  and 
if  he  departs  from  them,  though  for  ever  so  short  a  time  or  distance,  the 
bounds  are  broken.  In  this  case  of  breach  of  the  rules,  the  bond  being 
assigned  over  to  the  ])laintiff,  and  the  escape  warrant  procured,  the  duties 
of  the  gaoler  or  sherifi' herein  are  at  an  end,  and  the  creditor  is  to  proceed 
to  have  the  party  taken.  It  is  otherwise  where  the  escape  is  from  actual 
custody  in  the  gaol,  or  from  the  ofiicer  on  his  way  to  gaol. 

As  the  securities  may  be  absolved  by  the  recommitment,  and  as  the  law 
authorizes  the  justice  to  grant  the  warrant  unto  any  one  demanding  the 
same,  I  presume  it  may  issue  at  their  instance,  as  well  as  upon  the  applica- 
tion of  the  sherifi' or  creditor. 

If  the  prisoner  escapes  with  the  consent  of  the  gaoler,  the  creditor  by 
common  law  might  have  a  new  execution  against  his  body;  Bac.  Escape, 
E.  3;  for  an  unsatisfied  casa  is  as  if  there  had  been  no  execution. 

We  now  proceed  to  the  third  section  of  the  act  concerning  escapes.  It 
declares  that  the  sheriff  shall  not  be  liable  for  an  escape,  unless  the  jury 
shall  expressly  find  that  it  was  with  the  consent  or  through  (he  negligence  of 
the  officer ;  or  that  the  prisoner  might  have  been  retaken  and  that  the 
sheriff  and  his  officers  neglected  to  make  fresh  pursuit. 

On  this  part  of  the  third  section  observe, 

First,  That  the  section  only  applies  to  escapes  on  final  ])rocess  or  to  in- 
voluntary escapes  on  mesne  process.  For  where  the  sherilf  suffers  the  de- 
lendant  to  go  at  large  on  mesne  process  it  is  not  an  escape,  nor  is  it  so  treat- 
ed either  by  common  law  or  statute.  For  the  sheriff  might  always  on  mesne 
process  suffer  the  defendant  to  go  at  large,  provided  he  had  him  ready  at  the 


CHAP.  20.]  ^SCAPES.  353 

return  day  of  the  writ  according  to  its  mandate.     He  might,  therefore,  ect 
him  at  liberty  for  a  time,  and  retake  him  at  pleasure,  and  in  doing  eo  was 
no  trespasser.     3  T.  R.  172.     If,  indeed,  he  had  him  not  at  the  return  of 
the  writ,  agreeably  to  his  precept,  he  was  (in  England)  liable  to  an  action 
on  the  case,  and  may  be  here  responsible  ih  the  same  manner  and  to  the 
same  extent  as  special  bail.     But  no  action  of  debt  could  be  maintained 
against  him  either  here  or  in  England  for  permitting  the  party  logo  at  large 
without  taking  bail.     5  T.  R.  40.     In  England  an  action  on  the  case  in- 
deed would  lie  for  the  breach  of  duty,  but  with  us  the  plaintifl's  remedy  is 
specific  ;  for  the  sheriff  is  himself  treated  as  the  special  bail.     It  is  obvious, 
therefore,  that  this  section  does  not  apply  to  permissions  to  defendants  tak- 
en on  mesne  process  to  go  at  large. 

Where,  however,  a  defendant  actually  escapes  on  mesne  process  the  she- 
riff cannot  be  proceeded  against  as  bail.  2  Mun.  3-3-3.  Wherefore  lie  is 
only  liable  in  an  action  for  the  escape,  and  by  this  section  is  only  responsi- 
ble in  case  the  jury  find  their  verdict  according  to  the  form  prescribed  by 
the  act. 

But  though  the  permission  to  a  debtor  taken  on  rncsnc  process  to  go  at 
large  does  not  amount  to  an  escape,  yet  where  a  priisoner  in  execution  es- 
caped, inasmuch  as  the  "  body  was  the  satisfaction,"'  according  to  the  bar- 
barous notion  of  the  law,  if  the  sheriff  voluntarily  suffered  the  prisoner  to 
go  at  large  for  ever  so  short  a  time,  he  became  liable  to  the  action  of  the 
plaintiff; — not  indeed  in  an  action  of  debt,  but  in  an  action  on  the  case,  itl 
which  he  recovered  damages  commensurate  to  the  injury  sustained,  though 
lie  might  at  the  same  time  proceed  against  the  original  debtor.  2  T.  R. 
129.  See  also  5  T.  R.  110.  In  this  action  on  the  case,  therefore,  the  da- 
mages may  well  vary  from  a  cent  to  the  amount  of  the  debt ;  7  John.  Rep* 
192 ;  for  if  the  plaintiff  recovers  the  debt  after  the  escape  from  the  defen- 
dant, the  damage  is  unimportant ;  if  ho  loses  it  altogether,  (though  the  par- 
ty was  solvent,)  and  the  loss  appears  to  have  been  occasioned  by  the  escape, 
the  debt  might  be  the  measure  of  damages. 

The  English  statute,  however,  and  our  owti,  have  both  provided  that  iti 
the  case  of  a  wilful  and  negligent  escape  of  any  debtor  in  execution  from  a 
sheriff  or  other  officer,  the  creditor  may  have  his  action  of  debt  against  the 
sheriff  or  other  officer,  for  the  recovery  of  the  full  amount  of  the  execution. 
These  affirmative  statutes,  however,  do  not  take  away  the  common  law  re- 
medy, so  that  the  creditor  may  either  sue  the  sheriff  in  ctise,  and  proceed 
also  against  the  defendant,  or  sue  the  sheriff  in  debt  under  the  statute.  See 
2  T.  R.  129.  If  he  sues  the  sheriff  in  debt,  it  is  said  he  must  recover  the 
whole  sum ;  idem  ;  though  this  strong  expression  is  (in  5T.  R.40,)  much 
qualified  by  the  judge  wlio  used  it.  It  is  an  important  question  whether 
the  sherifi"  is  responsible  in  such  action  for  the  whole  debt  (unless  part  of 
it  has  been  received  by  the  creditor)  or  can  diminish  the  recovery  by  shew- 
ing insolvency  of  the  defendant  or  such  like  matter  in  mitigation.  On  the  one 
hand  the  law  seems  direct  and  positive  ;  see  §  3.  See,  also,  3  B.  C.  415. 
On  the  other  are  decisions  of  respectable  judges.  Such  testimony  was  ad- 
mitted by  Judge  Brockenbrough  in  the  case  of  Holy  and  Suckley  against 
the  sheriff  of  Berkeley,  and  seems  to  be  countenanced  by  a  decision  in  7 
John.  Rep.  192. 

If  such  action  be  brought,  and  the  debt  itself  recovered  of  the  sheriff,  I 
presume  the  creditor  cannot  proceed  at  the  same  time  to  prosecute  his  de- 
mand against  the  debtor,  so  as  thus  to  receive  a  double  satisfaction.  Is  it 
not  most  reasonable  to  suppose  that  in  such  case,  by  electing  the  action  of 
debt  against  the  sheriff,  he  waives  the  proceeding  against  the  debtor,  and 
that  by  the  payment  to  the  creditor  by  the  sheriff,  he  in  his  turn  may  com- 
pel the  debtor  to  refund  ?  It  would  seem  not.  8  E.  171,  172.  4  Starkie, 
VOL.  2 — 40 


354  ESCAPES.  [•  BOOK  3. 

1357.  1  Bac.  Abr.  275.  On  these  subjects  my  research  has  not  yet  ena- 
bled me  to  speak  with  any  confidence. 

Be  this  as  it  may,  we  may  next  remind  the  student  that  the  sheriff's  lia- 
bihty  arises  from  an  escape  either  voluntary  or  negligent.  If  it  was  volun- 
tary it  can  never  be  purged,  and  the  sheriff  cannot,  either  by  retaking,  or 
by  the  voluntary  return  of  the  prisoner,  relieve  himself  from  the  action  ;  for 
when  the  creditor's  action  has  well  attached,  this  subsequent  matter  shall 
not  excuse  him,  so  that  he  is  liable  whether  the  prisoner  is  ever  retaken  or 
not. 

But  where  the  escape  has  not  been  voluntary,  but  without  the  knowledge 
or  assent  of  the  sheriff,  his  liability,  I  conceive,  may  be  thus  defined.  If 
the  prisoner  has  escaped  without  any  negligence  on  las  part,  and  he  makes 
fresh  pursuit,  he  is  not  liable,  whether  he  be  retaken  or  not.  But  even  if 
the  original  escape  was  not  chargeable  to  his  negligence  or  default,  he  be- 
comes liable  as  for  a  negligent  escape  where  he  neglects  to  make  fresh  pur- 
suit. 

On  the  other  hand,  where  the  original  escape  of  the  prisoner  proceeded 
from  negligence,  he  is  chargeable. 

1.  Though  he  make  hesh  pursuit,  if  the  prisoner  be  not  retaken. 

2.  Though  he  make  fiesh  pursuit,  and  the  prisoner  is  retaken  or  surren- 
ders himself,  but  not  till  alter  action  brought.     Bac.  Escape,  H. 

But  he  is  not  chargeable  even  in  case  of  a  negligent  escape  (unless  it 
was  also  wilful.) 

L  If  he  makes  fresh  pursuit,  and  the  prisoner  is  retaken. 

2.  If  the  prisoner  surrenders  himself  before  action  brought ;  for  a  volun- 
tary return  before  action  brought,  is  equivalent  to  a  retaking  upon  fresh  pur- 
suit.    2  T.  R.  126. 

Note. — The  action  for  an  escape  must  be  brought  against  the  sheriff — not 
against  the  gaoler.  2  Bac.  Escapes.  See  I  Mun.5Ul.  1  Wash.  106.,  1 
W.  4. 

Secondly,  we  must  observe,  on  this  part  of  the  third  section,  that  it  has 
been  said  by  high  authority,  that  escapes  which  are  in  England  fixed  upon 
the  sheriff  from  legal  deductions,  seem  to  be  done  away  in  this  country  by 
this  act,  which  subjects  the  sheriff  only  where  the  jury  expressly  find  the 
escape  with  his  consent  or  through  his  negligence.  Per  Pendleton,  J.  1 
Wash.  6.  And  this  the  verdict  must  expressly  find,  for  no  intendment  or 
reference  whatever  will  supply  the  want  of  this  express  finding.  1  Mun. 
501. 

Thirdly  ;  observe  that  in  an  action  for  an  escape,  the  actual  escape  is 
the  gist  of  the  action,  and  therefore  must  be  proved  by  the  plaintiff;  but,  it 
is  said,  he  is  not  bound  to  prove  affirmatively  that  the  escape  was  with  the 
assent  or  through  the  negligence  of  the  oflicer,  for  that  is  to  be  presumed, 
unless  a  tortious  escape  be  shewn,  and  that  fresh  pursuit  was  made.  1 
AVash.  4. 

The  latter  part  of  the  third  section  of  the  act  concerning  escapes,  con- 
tains a  proviso,  that  if  the  sheriff  or  other  ofiicer  wilfidly  and  negligently 
suffer  a  debtor  to  escape,  the  creditor  may  have  an  action  of  debt  against 
tlie  sheriif  for  the  recovery  of  all  the  money  or  tobacco  mentioned  in  the 
execution,  and  damages  for  retarding  it.  This  has  been  already  the  sub- 
ject of  remark,  and  nothing  further  need  be  here  added. 

Having  thus  disposed  of  the  subject  of  escaj)es,  it  is  proper  to  advert  ta 
the  relief  which  is  by  our  law  afforded  to  the  debtor,  wliere  he  is  in  insol- 
vent circumstances,  and  is  confined  by  process  of  execution.  1  shall  con- 
tent myself,  however,  with  referring  to  the  insolvent  act,  1  11.  C.  ch.  L34,  § 
31  to  44,  and  2  U.  C.  5b5,  and  with  remarking  that  an  insolvent  debtor  may 
di'^chargo  himself  under  (he   |)rovisions  of  that  act,  by  taking  the  insolvent 


CHAP.  20.]  OF  THE  CAS  A.  355 

oath,  and  surrendering  his  property,  both  real  and  personal,  to  the  sheriff 
for  the  benefit  of  his  creditors.  See  on  this  branch  of  the  law,  1  Cranch, 
132.  3  Cranch,  300.  1  Wheat.  4 17.  5  Cranch,  3G3.  Ulan.  277.  1  Virg. 
Ca.  138.     2  Virg.  Ca.  494.     1  Wash.  196.     3  Call,  329.     1  H.  &  M.  12. 

It  remains  for  mc  to  consider  two  other  interesting  questions  in  relation 
to  the  casa,  before  we  proceed  to  the  subject  of  the  fieri  facias. 

1.  How  flir  is  a  casa  executed,  a  satisfxction  of  the  judgment. 

2.  How  far  is  it  a  lien  upon  the  lands  and  goods  under  the  late  act  of 
assembly. 

As  to  the  first: 

Where  there  is  only  one  defendant  against  whom  the  plaintiff  has  obtained 
his  judgment  and  issued  his  execution,  if  that  defendant  be  taken  upon  a 
casa  no  other  execution  on  the  same  judgment  can  ever  afterwards  be  is- 
sued in  his  lifetime  against  his  goods  and  chattels,  lands  or  tenements.  IV 
he  dies,  indeed,  the  creditor  is  remitted  to  his  original  remedies,  by  the  spe- 
cial provision  already  recited.  But  while  the  defendant  lives,  and  his  body 
is  in  execution,  the  creditor  can  have  no  other  execution.  The  law  gives 
him  an  election  to  take  the  goods;  or  the  goods  and  profits  of  the  lands  ; 
or  the  goods  a-nd  possession  of  the  lands  of  his  debtor,  or  finally  his  debtor's 
body,  if  he  prefers  that  remedy  as  a  means  of  compelling  him  to  make  satis- 
faction. The  possession  of  the  body  is,  indeed,  neither  in  the  eye  of  rea- 
son, or  of  the  law,  an  actual  satisfaction  of  the  debt ;  and  hence  the  casa 
is  not  even  after  it  has  been  executed,  and  while  the  debtor  is  in  execution, 
a  satisfaction.  It  only  teiuls  to  satisfy.  It  is  not  a  valuable  execution^  but 
a  mere  measure  of  constraint.  If  the  defendant  chooses  to  remain  in  gaol 
obstinately,  without  paying  his  debt,  the  plaintiff  has  no  remedy,  however 
overflowing  the  resources  of  his  adversary  may  be.  He  has  made  his  elec- 
tion and  is  confined  to  it.  So  far,  therefore,  as  he  is  thus  restrained  from 
proceeding  against  the  property  of  the  defendant,  after  he  has  had  him  taken 
on  an  execution,  so  far  does  the  casa  seem  to  partake  of  the  character  of 
a  satisfaction.  But  when  we  reflect,  that  though  he  keeps  the  defendant 
confined  till  the  day  of  his  death,  he  may  on  the  happening  of  that  event 
still  proceed  to  enforce  his  demand  by  further  proceedings,  I  think  it  will 
be  sufliciently  apparent,  that  the  taking  the  body  of  the  debtor  by  a  casa  is 
not  a  satisfaction  of  the  debt,  but  in  the  language  of  the  law  only  tends  to 
satisfy  it. 

If,  indeed,  after  having  levied  the  execution  on  the  body,  the  creditor 
consents  to  release  his  debtor  from  custody,  and  agrees  that  he  may  go  at 
large,  then  the  law  regards  the  execution,  the  levy,  and  the  discharge,  as 
amounting  to  a  satisfaction  of  the  judgment.  No  new  execution  on  that 
judgment  eser  canissiie.^^  It  is  considered  as  satisfied  and  discharged,  and 
the  debt  or  demand  is  itself  gone  forever,  unless  the  defendant,  on  being 
discharged,  promised  future  payment ;  in  which  case,  a  new  action  will  lie 
indeed  on  this  promise,  and  a  new  judgment  may  be  obtained  thereupon, 
but  the  original  judgment  is  gone  forever.  4  Bur.  2482.  6T.  R.  526,  420. 
Hob.  59.     1  T.  R.  557. 

We  must  observe,  however,  that  it  is  only  when  the  plaintiff  himself  hath 
assented  to  this  discharge  of  the  debtor  that  this  cfiect  is  produced.  For  if 
the  debtor  escape,  he  may  be  retaken  ;  if  the  sheriff  consent  to  his  escape  or 
going  at  large,  the  creditor  may  nevertheless  retake  him.  2  Wils.  295.  So, 
though  the  defendant  discharges  himself  under  our  law,  by  a  tender  of  pro- 
perty, yet  if  it  is  insufficient,  a  new  casa  may  issue,  for  so  far  as  the  defi- 
ciency extends,  the  first  was  no  satisfaction  ;   and  the  debtor  is  discharged, 

*2  Leigh,  361,  accordant.  See,  also,  3  Barn.  &  Aid.  297.  A  bond  Iiy  a  tliiid  person  conditioned 
to  restore  tlie  debtor  (who  has  once  been  discharged  by  the  plaintiti)  lo  the  cuslody  of  the  oflicer,  14 
ilJegal  and  void.    1  Bos.  &  Pul.  212.    Dacorta  vs.  Davis,  1  Bac.  Abr.  C16. 


356  OF  THE  CASAr  [  BOOK  3. 

not  by  the  act  of  the  plaintiff,  but  of  the  law.  The  casa  therefore  is  never 
a  complete  satisfaction,  unless  the  debt  is  paid  —  or  unless  sufficient  property 
be  delivered  up  in  discharge  of  the  body — or  unless  the  plaintiff  shall  him- 
self consent  to  the  discharge  of  the  defendant  after  he  has  actually  been  in 
custody  under  the  casa.  So  far  indeed  is  this  idea  carried,  that  even  where 
the  debtor  is  discharged  out  of  custody  by  the  failure  of  the  creditor  to  pay 
or  secure  to  the  gaoler  his  gaol  fees,  according  to  the  provisions  of  the  law, 
(Sess.  Acts.  1823,  ch.  30,)  yet  the  law  reserves  to  the  creditor  the  right  at 
any  time  afterwards  to  sue  out  a  scire  facias,  to  have  a  new  execution  against 
the  goods  and  chattels,  lands  and  tenements  of  his  debtor ;  which  could 
not  be,  if  the  levy  of  the  casa,  and  the  subsequent  discbarge  for  the  cause 
aforesaid,  would  amount  to  a  satisfaction. 

We  proceed  now  to  consider  this  question  as  it  relates  to  cases  in  which 
there  are  more  defendants  than  one. 

The  taking  of  the  body  of  one  of  two  joint  obligors  is  no  satisfaction  of 
the  debt,  and  no  bar  to  an  action  or  a  levy  of  the  casa  on  the  other ;  for  a 
casa,  though  executed,  is,  as  I  have  said,  not  a  satisfaction,  but  only  tends 
to  satisfy.  1  Wash.  71,  95.  1  Mun.  175.  G  T.  R.  525.  It  would  in- 
deed be  absurd  if  it  were  a  bar  ;  since  the  party  would  thus  entirely  lose 
the  responsibility  of  one  of  those  who  were  bound  for  his  demand,  when 
in  truth  he  had  received  no  real  satisfaction  from  either.  But  if  either  pays 
the  debt,  or  the  creditor  releases  to  either,  which,  as  we  have  seen,  enures 
to  both,  then  indeed  the  judgment  and  execution  are  discharged.  We 
must  bear  in  mind  also  the  principle  above  mentioned,  that  if  the  creditor 
discharges  his  debtor  from  custody  after  he  has  been  taken  in  execution, 
this  is  equivalent  to  a  release  of  the  judgment  forever;  for  having  taken 
the  body  as  his  satisfaction,  and  afterwards  given  it  up,  the  law  considers 
him  satisfied,  and  he  can  never  again  re-take  his  debtor  upon  the  same 
judgment,  nor  can  he  ever  after  recover  the  debt,  unless  upon  a  new  pro- 
mise or  engagement  to  pay  it,  made  either  at  the  time  of  the  discharge  or 
afterwards.  If  such  promise  be  made,  he  may  sue  upon  it  and  recover  a 
second  judgment,  and  enforce  it,  indeed,  but  the  first  judgment  is  utterly 
released" by  the  discharge.  2  Mod.  130.  1  T.  R.  557.  4  Bur.  2482.  7 
T.  R.  420.  2  E.  243.  6  T.  R.  520.  2  Leigh,  -301.  We  shall,  hereafter, 
see  how  far  this  is  the  case  where  the  creditor  releases  property  taken  on  a 
fifa.     See  1  Call,  18. 

Now  as  a  release  to  one  debtor  enures  to  all,  and  as  a  discharge  of  a 
debtor  from  execution  is  considered  as  a  release  and  satisfaction,  so  such 
discharge  of  one  enures  to  the  benefit  of  all  the  defendants,  and  is  an  en- 
tire satisfaction  of  the  judgment.  But  the  discharge  of  one  debtor,  on 
taking  the  insolvent  oatli,  is  no  discharge  of  the  other,  for  such  discharge 
is  not  with  the  consent  of  the  creditor,  wliich  is  essential  to  the  transaction's 
operating  as  a  release.     5  E.  147. 

Bui  though  the  levy  of  a  casa  upon  one,  is  no  bar  of  any  proceeding 
against  the  oilier,  because  it  is  no  cfieclual  satisfaction  of  the  debt,  but  only 
tends  to  satisfy  it,  yet  it  is  so  far  a  salisfiction,  that  he  cannot  issue  any  ex- 
ecution anr-iinst  the  goods  of  any  other  of  the  defendants.  For  there  can 
neither  be  a  separate  execution  on  a  joint  judgment,  (see  0  T.  R.  527,)  nor 
can  a  party  have  a  casa  against  one  and  a  fifa  against  another  defendant, 
(Bac.  Execution,  G.  1  R.  C.  ch.  134,  §  3,  ad.  fin  em,)  though,  as  we  shall 
see  hereafter,  he  may  change  liis  execution  after  it  lias  issued,  at  any  time 
before  it  is  levied. 

It  is  proper,  also,  to  remark,  lliat  though  a  casa  levied  upon  one  debtor 
is  no  bar  to  any  proceeding  against  the  other,  yet  by  tlic  laws  of  Virginia 
any  party  in  execution  hath  a  righl  to  tender  property  to  the  sheriff  in  dis- 
cliarge  of  his  body,  and  if  il  be   .suificient   to  discharge  the  debt,  interest, 


CHAP.  20.]  OF  THE  CASA.  357 

and  costs,  the  officer  is  compelled  to  receive  it  and  discharge  him.  If, 
therefore,  one  defendant  be  taken  on  a  casa,  and  is  discharired  uj)on  a  sur- 
render of  property  to  the  sheriff",  this  is  a  discharge  of  the  execution  as  to 
all  ;  for,  as  we  have  just  seen,  a  release  of  one  from  execution,  is  a  discharge 
of  all  ;  and  moreover,  by  this  provision,  the  act  of  assembly  hath  in  effect 
given  to  the  defendant  tlie  power  of  converting  the  ])laintiir's  casa  into  a 
fifa.  Now  if  a  fifa  issues  against  A  &  B,  and  the  sheriff  takes  property 
enough  from  A  to  satisfy  the  debt,  it  is  an  effectual  suspension  of  the  execu- 
tion against  B,  since  the  sheriff  having  taken  enough  to  satisfy  the  execu- 
tion can  have  no  right  to  take  more  than  enough.  1  W.  95.  5  Rep.  Blum- 
field's  case.  In  like  manner,  if  property  sufficient  to  pay  the  demand  is 
surrendered  by  one  in  discharge  of  hie  body,  the  sheriff  having  enough  to 
satisfy  it,  he  ought  not  be  permitted  to  take  any  other  defendant.  For  if 
the  casa  had  been  levied  on  all,  and  sufficient  property  was  delivered  up, 
it  would  of  course  have  discharged  all;  and  by  parity  of  reason,  if  it  had 
been  levied  on  one  of  the  defendants  only,  the  proceeding  ought  not  to  go 
on  against  the  others. 

These  principles  being  well  settled  and  understood,  we  may  proceed  one 
step  farther.  The  party  who  surrenders  property  in  discharge  of  his  body, 
being  set  at  liberty,  may  next  demand  of  the  sheriff  to  give  him  up  his  pro- 
perty till  the  day  of  sale,  upon  his  giving  a  forthcoming  bond.  See3Mun. 
308.  Hence,  where  such  forthcoming  bond  hath  been  given  by  any  of  tho 
parties,  it  seems  to  be  considered  (and  very  properly)  to  be,  so  long  as  it 
remains  in  force  and  unquashcd,  as  a  barrier  to  any  other  proceeding  under 
the  judgment.  See  1  W.  71,  96.  2  W.  1S9.  6  Mun.  421,  422.  It  is 
not,  indeed,  in  strictness,  a  satisfaction  of  the  judgment  in  itself,  because 
perchance  it  may  be  quashed,  i.e.  annulled  and  vacated  as  irregular.  But 
until  it  is  so,  it  operates  a  complete  suspension  of  proceedings  upon  the 
judgment  or  casa,  as  to  any  other  parties.  1  W.  9G.  3  Rand.  490.  It  is 
like  the  case  of  a  levy  upon  goods  of  one  of  several  obligors  under  a.  fifa, 
which,  though  it  tends  to  satisfy  the  debt,  is  no  satisfaction  until  the  pro- 
perty is  converted  into  money,  and  therefore  no  bar  to  an  action  against 
the  other  obligors,  since  nothing  but  actual  satisfaction  can  be  a  bar.  2 
Ld.  Ray.  1072.     3  Rand.  490. 

When,  however,  the  bond  is  quashed,  together  with  the  execution,  in  the 
manner  hereafter  shewn,  the  plaintiff  may  sue  out  new  casas  or  fif as,  which 
may  be  proceeded  in  against  all  the  defendants  in  like  manner  as  if  the  bond 
and  execution  which  were  quashed  never  had  had  existence. 

When  the  defendant  dies  in  execution,  the  casa  is  considered  as  having 
been  unavailable,  and  the  creditor  might,  both  by  common  law  and  statutory 
provision,  proceed  against  his  estate,  real  and  personal,  in  the  same  manner 
as  if  there  had  been  no  casa  levied  ;  1  W.  95 ;  1  R.  C.  ch.  134,  §  8,  9 ; 
but  the  judgment  must  first  be  revived  hy  scire  facias  either  against  the 
heir  or  executor,  according  as  the  realty  or  personality  is  the  object  of  pur- 
suit. When  there  was  judgment  and  execution  against  two  at  common 
law,  and  one  died,  the  demand  survived  against  the  other,  and  there  w'as 
no  longer  remedy  against  the  estate  of  the  other  ;  and  the  creditor  was 
moreover  driven  to  his  scire  facias.  This  scire  facias  was  brought  of 
course  only  against  the  survivor,  but  recited  the  judgment  against  both,  and 
suggested  the  death.  Bac.  Executions,  G.  The  same  course  is  yet  to  be 
pursued,  although  our  act  of  assembly,  1  R.  C.  ch.  98,  §  3,  gives  the  credi- 
tor a  remedy  against  the  representatives  of  the  decedent;  yet  they  cannot 
be  joined  in  a  scire  facias  with  the  living  man,  but  a  separate  scire  facias 
lies  against  them.     GRan.  162.     We  come  now  to  consider, 

2.  How  far  a  casa  operates  as  a  lien  upon  the  lands  or  goods  of  the  de- 
fendant. 


358  OF  THE  C ASA.  [  BOOK  3. 

By  an  act  passed  the  2d  March,  1821,  ch.  34,  §  4,  it  is  provided  "  that 
every  casa  shall  bind  the  property  of  the  goods  of  the  party  against  whom 
it  issues,  from  the  time  that  such  writ  shall  be  levied."  At  the  revisal  of 
1819,  it  was  further  enacted,  "  that  every  sale  of  lands  made  by  a  creditor 
in  execution,  shall,  as  to  the  creditor  at  whose  suit  he  is  in  execution,  be 
absolutely  void,  unless  it  be  made  for  the  payment  of  such  creditor's  debt, 
and  the  proceeds  of  sale  be  paid  or  secured  to  him.  And  it  is  further  pro- 
vided, that  all  casas  shall  bind  from  the  time  of  the  levy." 

These  provisions,  it  will  be  perceived,  are  entire  innovations  upon  the 
common  law,  which,  so  far  from  binding  the  property  by  the  levy  of  a  casa, 
considered  it  entirely  and  forever  discharged.  They  have  produced  very 
great  difficulties,  which  can  only  be  removed  by  legislative  explanation  or 
judicial  decision.  I  shall  postpone  the  consideration  of  the  lien  upon  the 
land  till  I  come  to  the  execution  of  elegit. 

Less  difficulty  has  been  encountered,  I  think,  in  the  interpretation  of  the 
clause  which  binds  the  goods  from  the  time  of  the  levy,  than  in  that  which 
binds  the  lands.  It  does  not  appear  to  be  conceived  that  in  consequence 
of  this  "lien,"  the  same  creditor  can  proceed  to  levy  a  fifa  upon  the  per- 
sonalty of  the  prisoner  while  it  remains  unsold  by  him,  and  he  continues 
in  execution  ;  for  so  long  as  he  is  in  execution  his  body  is  "satisfaction." 
Nor  do  I  suppose,  (though  I  have  heard  the  idea  suggested,)  that  he  can, 
during  the  lifetime  and  confinement  of  the  defendant,  proceed  against  it  i-n 
equity.  But  if  the  defendant  takes  the  insolvent  oath,  any  goods  whereof 
he  was  possessed  at  the  time  of  the  levy,  would  at  once  become  liable  to 
the  creditor's  demand,  either  by  sale,  if  they  still  remained  his  and  were 
rendered  in  his  schedule,  or  by  the  aid  of  equity  if  he  had  sold  them  or 
given  them  to  another  after  the  levy.  There  are,  however,  other  questions 
arising  under  this  clause,  admitting  of  much  doubt,  which  are  yet  unset- 
tled by  the  courts.  Thus  it  seems  to  have  been  contended  that  the  lien  of 
the  casa  does  not  prevent  the  levy  of  other  executions  upon  the  property, 
the  object  of  the  legislature  having  been  to  avoid  subsequent  alienations, 
but  not  to  interfere  with  or  suspend  other  process  of  execution.  See  Mr. 
Leigh's  argument  in  the  case  of  Jackson  vs.  Heiskell,  1  Leigh,  257.  So, 
too,  it  seems  questionable  what  becomes  of  this  lien  if  the  defendant  dies 
in  gaol,  though  one  of  the  judges  of  the  court  of  appeals,  in  the  case  above 
cited,  intimates  his  opinion,  that  in  such  case  the  creditor  is  only  remitted 
to  his  remedies  upon  the  original  judgment,  and  that  they  are  in  no  degree 
strengthened  by  the  circumstance  that  the  debtor  had  been  in  execution. 
1  Leigh,  276.  So,  too,  it  may  be  asked,  whether  the  creditor,  while  his 
debtor  is  in  execution,  can,  upon  the  principles  of  the  bill  quia  timet,  en- 
join the  defendant  from  wasting  or  consuming  the  goods,  or  any  purchaser 
from  eloigning  them.  Farther  than  that  I  should  conceive  he  could  not  go 
in  chancery,  and  at  law  it  is  obvious  that  he  is  without  remedy,  because  he 
is  without  definitive  rights. 

The  recent  passage  of  the  foregoing  act  has  prevented  our  being  able  to 
illustrate  these  questions  by  farther  decisions.  While,  therefore,  1  present 
my  own  opinions,  I  am  by  no  means  confident  that  they  will  be  sanctioned 
by  the  tribunals  of  the  country.  To  the  notion,  which  some  practitioners 
among  us  entertain,  that  upon  a  conveyance  by  an  imprisoned  debtor  of 
liis  personal  property  or  a  part  of  it,  the  creditor  would  have  a  right  to  file 
his  Ijill  in  chancery  to  assert  his  lien,  there  seem  many  objections.  In  con- 
sidering that  question  we  shall  have  to  decide  how  far  it  is  competent  to  a 
court  of  equity  to  enforce  the  demand  when  the  creditor  has  not  at  law 
any  right  whatsoever  to  subject  the  goods  to  his  execution  during  the 
debtor's  life  and  confinement;  how  far  it  could  have  been  intended  to  give 
to  the  creditor  new  and  more  extended  rights,  in  case  of  a  transfer  of  the 


CHAP.  20.]  OF  THE  FIERI  FACIAS.  359 

property,  than  he  would  have  had  without,  when  there  is  not  a  word  indi- 
cating such  a  design  ;  how  far  these  supposed  riglits  extend  where  the  trans- 
fer has  been  only  partial,  and  the  debtor  yet  retains  ample  funds  to  meet  the 
amount  of  the  execution  in  case  of  his  death  or  swearing  out ;  whether  it 
can  reasonably  be  inferred  from  this  short  clause,  that  under  certain  cir- 
cumstances the  creditor  might  harass  his  debtor  with  a  suit  in  equity  while 
he  still  persists  in  keeping  him  in  gaol  ;  and  lastly,  whether,  if  by  the  aliena- 
tion the  creditor  acquires  a  specific  right  against  the  property  conveyed  and 
to  have  it  sold  for  his  debt,  he  is  at  the  same  moment  bound  to  discharge 
the  defendant's  body  from  execution,  as  he  would  be  upon  his  delivering 
up  property  in  discharge  of  his  body.  All  these  are  import;) nt  considera- 
tions, which  must  be  carefully  weighed  before  the  opinion  above  alluded  to 
can  be  safely  conceded. 

"  If  a  capias  ad  satisfaciendum  is  sued  out,  and  a  non  est  inventus  is  re- 
turned thereon,  the  plaintitf  may  sue  out  a  process  against  the  bail,  if  any 
were  given  :  who,  we  may  remember,  stipulated  |,in  this  triple  alternative, 
that  the  defendant  should,  if  condemned  in  the  suit,  satisfy  the  plaintiff', 
his  debt  and  costs;  or  that  he  should  surrender  himself  a  prisoner;  or, 
that  they  would  do  it  for  him  :  as  therefore  the  two  former  branches  of  the 
alternative  are  neither  of  them  complied  with,  the  latter  must  immediatel/ 
take  place.  In  order  to  which  a  writ  of  scire  facias  may  be  sued  out 
against  the  bail,  commanding  them  to  shew  cause  why  the  plaintiff'  should 
not  have  execution  against  them  for  his  debt  and  damages  :"  and  on  such 
writ,  if  they  shew  no  sufficient  cause,  or  the  defendant  does  not  surrender 
himself  on  the  return  day  of  the  first  scire  facias,  which  is  returned  execut- 
ed, or  of  the  second  returned  nihil,  (for  afterwards  the  surrender  will  not 
be  sufficient,)  the  plaintiff"  may  have  judgment  against  the  bail,  for  his  full 
demand  against  the  principal,  including  debt,  interest,  damages,  and  costs; 
and  may  enforce  that  judgment  by  any  execution  which  might  have  issued 
against  the  principal,  or  could  issue  against  the  bail  for  liis  own  proper 
debt.  We  have  elsewhere  noticed  the  proceeding  by  scire  facias  against 
the  bail,  and  must,  therefore,  content  ourselves  with  a  reference,  at  this 
time,  to  1  R.  C.  ch.  128,  §  54,  55,  56,  57,  and  1  Wash.  .313.  2  Wash.  213. 
4  Mun.  516,  3  Mun.  '339  :  to  all  which  I  ask  the  student's  particular  at- 
tention. ^ 

2.  "  The  next  species  of  execution  is  against  the  goods  and  chattels  of 
the  defendant;  and  is  called  a  writ  of  fieri  facias,  from  the  words  in  it 
where  the  sheriff  is  commanded,  quod  fieri  faciat  de  bonis,  that  he  cause 
to  be  made  of  the  goods  and  chattels  of  the  defendant  the  sum  or  debt  re- 
covered. This  lies  as  well  against  privileged  persons  as  others  ;  and  against 
executors  or  administrators  with  regard  to  the  goods  of  the  deceased.  The 
sheriff  may  not  break  open  any  outer  door  to  execute  either  this  or  the 
casa  :■  but  he  must  enter  peaceably,  and  may  then  break  open  any  inner 
door  belonging  to  the  defendant,  in  order  tu  take  the  goods.  And  he  may 
sell  the  goods  and  chattels  (even  the  estate  for  years,  which  is  the  chattel 
real,)  of  the  defendant,  till  he  has  raised  enough  to  satisfy  the  judgment 
and  costs  :  first  paying  the  landlord  of  the  premises  upon  which  the  goods 
are  found  the  arrears  of  rent  then  due,  not  exceeding  one  year's  rent  in 
the  whole."  Sess.  Acts,  1823.  1  R.  C.  ch.  11.3,  §  7.  See  1  Wash.  232. 
3  Barn.  &  Aid.  440,  645.  If  part  only  of  the  debt  be  levied  on  a  fifa  the 
plaintiff  may  have  a  casa  for  the  residue. 

To  this  very  abridged  account  of  the  fieri  facias  which  Mr.  Blackstone 
has  given  us,  I  deem  it  essential  to  add  a  much  more  enlarged  view  of  the 
subject,  to  enable  the  student  to  become  familiar  with  a  portion  of  the  com- 
mon law,  which  is  of  every  day's  occurrence,  and  presents  a  variety  of 
questions  and  difficulties  which  should  be  solved  before  the  student  enters 


8G0  OF  -tHE  FIERI  FACIAS.  [  book  3. 

upon  the  practice  of  his  profession.     In  executing  this  task,  I  shall  con- 
fiider, 

1.  Whose  property  may  be  taken  under  a  fieri  facias.  By  this  writ  the 
sheriff  is  directed  "  to  cause  the  amount  of  the  plaintiff's  demand  to  be 
made  of  the  goods  and  chattels  of  the  defendant  in  his  bailiwick."  He  is 
not,  therefore,  justified  in  taking  the  goods  of  any  other,  and  even  if  he 
does  so  by  mistake,  he  is  a  trespasser.  And  though  he  should  proceed  to 
sell  the  goods  of  a  third  person  under  the  execution,  yet  the  title  of  the 
owner  would  not  thereby  be  divested.  1  VV.  308.  Neither  can  a  fifa  be 
legally  levied  on  slaves  specifically  bequeathed,  where  the  executor  has  as- 
sented to  the  legacy,  and  has  assented  to  the  legatee's  taking  possession. 
5  Mun.  175.  Nor  can  a  fifa  against  an  executor  for  his  own  debt  be  le- 
vied upon  the  property  of  the  testator.  4  T.  R.  G21.  (Scdvide,  6  T.  R. 
G2G,  in  note,  and  I  B.  &.  P.  295.)  Yet  if  execution  be  issued  against  a  de* 
fendaiit  in  his  lifetime,  and  he  dies  before  levy,  or  even  before  delivery  to 
the  sheriff,  it  must  proceed,  and  he  may  levy  it  upon  the  testator's  goods  in 
the  hands  of  the  executor.  Bac.  Execution,  C.  4.  See  4  T.  R.  621.  For 
an  execution  is  an  entire  thing,  and  cannot  be  superseded  after  it  is  begun. 
1  B.  &  P.  571,  563,  n.  a.  7  T.  R.  20.  Nor  can  it  be  levied  on  property 
conveyed  to  the  separate  use  of  a  wife,  for  a  debt  due  from  the  husband  ; 
though  if  the  trust  be  "to  permit  the  husband  and  wife,  during  their  joint 
lives,  to  enjoy  the  profits,"  they  may  be  taken  to  satisfy  a  debt  incurred  af- 
ter marriage,  for  supplies  furnished  for  the  support  of  the  husband  and 
wife.  6  Mun.  117.  Nor  can  an  execution  be  levied  on  money  bo7ia  fide 
lent  to  the  sheriff  and  applied  by  him  to  his  own  use  prior  to  his  receiving 
the  fifa,  nor  can  it  be  subjected  to  payment  of  the  debt  in  equity.  2  H.  & 
M.  87.  In  other  words,  when  a  fifa  comes  into  a  sheriflf  s  hands,  and  he 
owes  the  defendant,  the  execution  does  not  attach  upon  the  debt,  nor  is  he 
bound  to  return  it  levied  or  satisfied.  See  4  B.  ScP.  376.  Yet  where  mo- 
ney made  under  an  execution  for  any  person  is  in  the  sheriff's  hands  at 
the  time  h  fifa  comes  into  his  hands  against  the  same  party,  he  ought  to  pay 
it  into  court,  and  the  court  may  in  its  discretion  direct  it  to  be  paid  over  in 
satisfaction  of  the  fifa,  whether  tliere  are  other  goods  whereon  it  might  be 
levied  or  not.  See  1  Cranch,  13G.  Doug.  231,  and  the  cases  cited  "Taite's 
Digest,  218,  n.  b.  (Sed  vide,  4  E.  510.  9  E.  48.)  And  it  would  seem 
that  where  the  sheriff  was  debtor  to  the  defendant,  he  might,  if  he  pleased, 
return  that  "  the  money  was  made  and  ready  to  render,"  and  thereby  bind 
his  securities  in  case  of  default  of  payment  See  Norris  vs.  Crummey,  1 
Rand.  323. 

In  connexion  with  this  part  of  the  subject  it  may  also  be  observed,  that 
where  property  hath  been  taken  under  one  execution,  and  has  been  return- 
ed to  the  defendant  upon  his  giving  a  delivery  bond  with  securities,  the  lien 
of  that  execution  on  the  property  continues  until  the  bond  has  been  for- 
feited ;  and  if  another  execution  be  levied  on  it,  so  that  the  surety  is  pre- 
vented from  complying  with  the  condition  of  his  bond,  a  court  of  equity 
will,  at  the  instance  of  the  surety,  perpetually  injoin  the  proceedings  upon 
the  bond;  3  Mun.  417;  and  the  sheriff  will  thus  become  liable  to  the 
plaintiff  in  the  first  execution,  for  appropriating  the  property  improperly  to 
the  benefit  of  the  second. 

2.  What  kind  of  property  may  be  taken. 

The  writ  of  fieri  facias  authorizes  the  sheriff  to  st^ize  every  thing  that  is 
a  chattel,  whether  chattel  real  or  personal.  So  that  if  the  defendant  hath 
a  lease  for  years,  he  may  seise  and  sell  that,  however  long  may  be  its  con- 
tinuance. 4  Rep.  74.  And  so  he  may  seise  slaves,  cattle,  corn,  household 
stuff,  &,c.  Slaves  cannot  be  taken  for  a  debt  under  $33.00,  if  other  suffi- 
cient property  of  the  defendant  be  shewn.     1  R.  C.  eh.  134,  §  21.     Arms, 


CHAP.  20.]  OF  THE  FIERI  FACIAS.  361 

ammunition,  and  equipments  of  militia  are  privileged.  1  R.  C.  eh.  134,  § 
14.  And  even  money  in  the  possession  of  the  defendant  may  be  also  taken 
by  virtue  of  a  fifa.  feee  1  Cranch,  117.  Steel  is.  Co.  vs.  Brown,  General 
Court,  June,  18:21.  12  John.  220,  395.  And  though  it  has  been  said 
(Cases  Tem.  Hard.  53.  Bac.  Execution,  C.)  that  bank  notes  cannot  be 
taken  in  execution  because  they  are  merely  choses  in  action,  yet  this  doc- 
trine may  well  be  questioned  at  this  day  ;  both  because  they  pass  as  mo- 
ney, and  because  they  are  transferrab'.e,  though  choses  in  action.  In  like 
manner  I  should  presume  that  bonds  which  are  assignable  in  Virginia  may 
be  taken  in  execution  and  sold,  though  it  must  be  confessed  that  there  is 
no  authority  within  my  knowledge  to  countervail  the  decision  above  men- 
tioned. As  to  levying  execution  on  money  of  defendant  in  sheriff's  hands, 
see  1  Cranch,  136.     Doug.  231,  9  E.  48,  however,  seems  centra. 

I  have  said,  that  by  this  writ  the  sheriff  may  take  a  lease  for  years  in  ex- 
ecution, for  that  is  but  a  chattel :  but  such  things  as  belong  to  the  freehold 
cannot  be  seized.  Gilb.  on  Ex.  19.  Nor  does  this  execution  give  him  any 
authority  to  break  or  disunite  any  thing  from  the  freehold.  Bac.  Execution, 
C.  4.  For  nothing  belonging  to  the  freehold  is  a  chattel,  and  the  writ  only 
commands  him  to  take  goods  and  chattels.  Hence,  I  iiad  conceived  that 
corn,  wheat,  or  other  crops  growing  or  sown  in  the  ground  on  freehold  pre- 
mises, could  not  be  taken  on  this  execution,  though  it  uiight  be  otherwise 
where  they  are  growing  on  a  lease  for  years.  And  to  this  opinion  I  inclined 
notwithstanding  the  cases  cited  by  Mr.  Taite,  page  218.  For  these  are 
founded,  I  conceive,  upon  a  case  in  1  Salk.  368,  which  justifies  no  such 
conclusion.  In  Dalt.  956,  the  law  is  laid  down  in  general  terms,  but  no 
authority  is  cited:  in  page  145  he  states  it  again,  but  in  connexion  with  a 
lease  for  years,  so  that  upon  the  whole  he  should  not  be  considered  as  going 
farther  than  I  should  have  done.  In  5  Coke,  11,  cited  by  Mr.  Taite,  there 
is  not  a  word  on  the  subject.  The  reference  is  probably  mistaken.  The 
doctrine  laid  down  in  Salkeld  is  in  reference  to  crops  growing  upcii  leases 
for  years,  and  not  upon  a  freehold  estate.  And  the  distinction  is  obvious; 
for  as  the  lease  itself  is  but  a  chattel  and  subject  to  the  fifa,  the  crop  which 
is  but  appurtenant  to  it,  can  only  be  a  chattel,  and  must  in  like  manner  be 
liable  to  be  taken.  It  is  admitted,  however,  that  fixtures  put  up  in  the  way 
of  trade  may  be  taken  on  an  execution  against  the  tenant,  for  they  are 
considered  but  as  chattels  which  the  tenant  has  a  right  to  remove.  1  Salk. 
368.  It  seems,  however,  notwithstanding  these  suggestions,  to  be  consid- 
ered as  settled,  that  o-rowing  crops  may  be  taken  on  a  fifa.  2  Bro.Sc  Bing. 
362.    6  C.  L.  R.  156.     12  C.  L.  R.  378. 

It  seems  to  be  a  necessary  consequence  of  the  doctrine  of  trusts, — of 
the  separate  jurisdictions  of  courts  of  law  and  equity,  and  of  the  practice 
of  courts  of  law  which  disregard  the  doctrines  of  equity  in  relation  to  trusts, 
that  an  execution  cannot  be  levied  on  a  resulting  trust  or  on  any  mere 
equity.  And  so  accordingly  we  find  it  decided  in  various  cases.  1  John. 
C.  C.  56.  8  E.  467.  5  John.  C.  C.  335.  2  John.  C.  C.  283.  Property 
thus  situated,  it  is  said,  can  only  be  reached  through  a  court  of  equity.  But 
we  must  here,  I  conceive,  distinguish  between  trust  estates,  properly  so 
called,  and  mere  equities.  For  by  our  statute  estates  of  every  kind  holden 
in  trust  are  subject  to  like  debts  and  charges  of  the  cestui  que  trust  they  would 
be  if  the  party  held  the  legal  estate  therein.  1  R.  C.  ch.  99,  §  30.  Thus 
if  a  negro  is  conveyed  by  me  to  A,  in  trust  for  the  use  of  B,  he  would  I 
conceive  be  as  liable  to  be  taken  by  execution  against  B's  goods  and  chat- 
tels, as  if  B  had  the  legal  title.  And  yet  it  has  been  adjudged,  that  an 
equity  of  redemption  in  a  lease  for  years  is  a  mere  equity  which  cannot  be 
taken  by  execution.  1  Vez.  jr.  431.  3  Bro.  C.  C.  478.  It  has  since  beea 
decided  otherwise  in  New  York.  1  Gaines'  Cases,  47. 
VOL.  2 — 46 


362  OF  THE  FIERI  FACIAS.  [  book  3. 

3.  In  lohat  manner  the  sheriff  may  take  the  property.  He  cannot  break  an 
outer  door  of  a  dwelling  house,  but  if  he  peaceably  gains  entrance,  he  may 
break  open  chests,  inner  doors,  &c.,  even  without  first  demanding  of  the 
defendant  to  open  them,  for  these  are  only  for  the  protection  of  the  goods, 
and  are  not  held  sacred  as  the  outer  door  is,  which  is  for  the  protection  of 
the  person,  the  house  being  in  law  deemed  his  castle.  See  4  Taun.  619. 
5  Taun.  765.  14  E.  115.  For  a  like  reason  even  the  outer  doors  of  barns 
or  outhouses  not  adjoining  the  dwelling  house,  (Bac.  Execution,  A,)  and 
only  used  for  preservation  of  goods,  may  be  broken.  Gilb.  on  Ex.  17.  Nor 
is  the  dwelling  house  of  a  stranger  privileged  from  being  entered  by  the 
sheriff,  though  the  outer  door  be  closed,  if  the  defendant's  goods  are  found 
there,  and  the  owner  of  the  house  refuses  to  deliver  them.  Bac.  Sheriff,  n. 
3.  Yet  the  sheriff  enters  at  his  own  risk,  for  he  is  a  trespasser  if  they  are 
not  there.  5  Taun.  765.  6  Taun.  246.  Nor  is  the  delendant's  property 
protected  from  the  levy  of  an  execution  as  it  is  in  case  of  distress,  by  being 
in  his  actual  use  ;  as  a  horse  which  the  defendant  is  riding  :  for  the  sheriff 
may  first  levy  on  the  horse,  and  then,  I  presume,  may  proceed  to  dispossess 
him  by  "softly  laying  his  hands  upon  him." 

A  sheriff  ought  not  to  sell  more  of  defendant's  property  than  is  necessa- 
ry to  satisfy  the  demand,  provided  part  can  be  reasonably  detached  and  sold 
separately.  See  6  John.  C.  R.  414.  When  sufficient  goods  are  seized,  the 
defendant  is  discharged  by  the  seizure,  and  the  creditor  must  look  to  the 
sheriff.     1  John.  255.     1  Salk.  322.     2  Ld.  Ray.  1072. 

4.  When  the  execution  may  be  levied.  Here  it  is  obvious  to  remark  that  a 
levy,  before  the  issuing  of  the  execution,  cannot  be  made  good  by  its  sub- 
sequent emanation.  Nor  is  the  levy,  after  the  return  day  has  passed,  a 
legal  levy.  Bac.  Sheriff,  n.  1.  See  1  R.  C.  ch.  128,  §  70.  Taile,  68.  For 
before  the  emanation  of  the  writ  there  was  no  authority,  and  after  the  re- 
turn day  the  authority  which  existed  has  expired.  Yet  we  shall  see  here- 
after that  nevertheless,  if  the  fifa  be  once  levied,  the  future  proceeding  of 
the  sheriff  is  not  arrested  by  the  passing  of  the  return  day  ;  but  he  may  and 
must  proceed  to  sell  and  complete  the  execution  ;  for,  as  has  been  already 
said,  an  execution  is  an  entire  thing,  and  when  once  begun  is  never  sus- 
pended, but  must  be  completed.  And  thus  it  happens  that  the  creditor,  by 
delivery  of  the  execution  into  the  sheriff's  hands,  at  once  acquires  a  lien  on 
the  property,  and  if  it  be  afterwards  levied  before  the  return  day,  it  avoids 
all  mesne  acts  ;  yet  if  it  be  not  levied  before  the  return  day,  this  lien  is  for- 
ever lost  and  gone. 

No  execution  can  be  levied  on  Sunday.     1  R.  C.  ch.  78,  §  16. 

It  is  laid  down  in  Dalton,  1 16,  on  the  authority  of  9  Coke,  66,  "  that  the 
sheriff  may  make  an  arrest,  or  execute  any  process,  or  do  any  other  minis- 
terial act  in  the  night  time,  as  well  at  the  suit  of  the  subject  as  of  the  king." 

It  seems  that  members  of  the  assembly  are  by  their  privilege  protected 
from  the  levy  of  an  execution,  either  against  their  bodies,  goods,  or  lands, 
during  their  attendance  on  the  general  assembly,  and  one  day  before  and 
after  for  every  twenty  miles  they  must  necessarily  travel  to  or  from  home. 
1  R.  C.  ch.51,  §31,  ch.  134,  §  11.  Bat  if  a  levy  has  been  made  before  the 
commencement  of  the  privilege,  the  property  is  altered  and  the  defendant 
lias  no  right  to  have  it  returned  to  him.  If  it  be  returned,  it  seems  to  me 
that  the  sheriff  is  liable  for  it.  Nor  does  the  clause  above  alluded  to  affect, 
I  conceive,  a  lien  which  attached  before  the  privilege  commenced.  For 
though  the  fifa  cannot  be  levied,  and  even  if  levied  the  property  cannot  be 
legally  sold,  yet  the  lien  on  the  property  attaches  on  the  delivery  of  the 
writ  to  the  sheriff,  as  will  be  hereafter  shown  ;  and  the  process  is  only  sus- 
pended without  abatement  or  discontinuance. 


CHAP.  20.]  OF  THE  FIERI  FACIAS.  363 

5.  As  to  the  lien  of  thefifa.  This  lien  does  not  exist  until  the  delivery 
of  the  execution  to  the  sheriff  or  other  officer  ;  and  it  has  been  said  by  high 
authority,  that  a  levy  is  necessary  to  bar  a  subsequent  bona  fide  sale.  2 
John.  31'2.  Sed  quare.  4  East,  536,  contra.  The  sheriff  is  bound  to 
endorse  the  day  of  delivery,  and  if  two  executions  are  delivered  on  the  same 
day,  that  which  was  first  delivered  has  preference.  At  common  law  the 
goods  were  bound  from  the  teste  of  the  writ,  and  that  is  still  the  case  as  to 
the  party  himself,  for  the  statute  was  only  made  to  protect  strangers  ;  2  Vcn. 
218  ;  Com.  33  ;  G  Mod.  2:i5  ;  and  therefore,  if  he  dies  beforelevy,  the  she- 
riff may  proceed  to  levy  on  the  goods  in  the  executor's  hands.  Comb.  145- 
1  Bac.  Appendix,  52S,  title  Execution.  Here,  however,  it  is  important  to 
touch  upon  several  points. 

1.  What  is  the  extent  of  this  lien. 

2.  How  it  may  be  lost  by  laches  or  collusion,  or  any  act  releasing  the 
property  ;   and  here  of  the  effect  of  a  forfeited  forthcoming  bond. 

1.  What  is  the  extent  of  this  lien.  It  seems,  notwithstanding  the  opinion 
of  Chancellor  Kent  above  cited,  to  be  generally  understood  that  the  pro- 
perty in  the  goods  is  bound  by  the  delivery  of  ihefifa  to  the  sheriff,  and  that 
subsequent  sales  are  thereby  barred.  See  4  E.  53G.  Yet  the  properly  is 
not  divested  until  the  levy.  See  3  Mun.  431.  4  E.  523.  Hence  if  the 
execution  is  never  actually  levied,  the  lien  expires  with  it.  But  when  the 
levy  takes  place,  all  intermediate  sales,  transfers,  gifts,  or  alienations  of  the 
property,  between  the  date  of  the  delivery  to  the  sheriff  and  the  levy,  are 
avoided.  And  though  the  defendant  has  aliened  after  the  execution  came 
to  the  sheriff's  hands,  he  may  take  the  goods  whenever  he  can  find  them. 

One  consequence  of  the  principle  that  notwithstanding  the  lien  the  pro- 
perty is  not  divested  till  execution  executed,  seems  to  have  been,  that  if  a 
subsequent  execution  comes  into  the  sheriff's  hands,  and  he  executes  or  le- 
vies that  first,  and  proceeds  to  sell  under  it,  or  gives  a  bill  of  sale  to  the 
plaintiff  in  it,  (which  it  seems  is  practised  in  England,  Eac.  Sheriff,  n.  5,) 
the  plaintiff  in  the  first  execution  has  no  remedy  against  the  plaintiff  in  the 
second,  but  only  against  the  officer.  1  T.  R.  751.  4  E.  523.  But  where 
the  sheriff  has  made  no  sale,  and  has  seized  under  both  executions,  the  first 
must  have  the  priority,  nor  can  the  creditor  in  the  second  make  the  sheriff 
liable  for  giving  it,  although  the  last  was  levied  first.  1  T.  R.  729.  I 
Avould  suggest,  however,  that  with  us  the  sheriff  at  any  time  before  paying 
over  the  money  to  the  plaintiff  in  the  second  execution,  would  probably  be 
permitted  to  amend  his  return  so  as  to  give  the  preference  to  the  first. 

Our  sheriffs  have  various  deputies.  Suppose  A's  execution  delivered  to 
one,  and  B's  to  another,  on  the  same  day,  at  different  places.  Much  dif- 
ficulty may  exist  in  shewing  which  Vv-as  first  delivered.  The  like  difficulty 
may  also  occur  where  a  casa  is  levied  in  one  place,  and  'dfifa  delivered  to 
the  sheriff  in  another.  These  difficulties,  however,  refer  themselves  to  the 
matter  of  evidence,  not  of  law. 

2.  How  may  this  lien  be  lost  by  collusion  and  fraud,  by  negligence,  or 
by  the  act  of  the  parties  ;  and  herein  of  the  effect  of  a  forfeited  forthcoming 
bond. 

By  collusion,  the  preference  of  which  we  have  been  speaking  is  lost  to 
the  creditor  in  the  first  execution.  1  Wils.  44.  2  T.  R.  596,  case  cited  by 
Buller.     1  Salk.  320.     Bac.  Fraud,  A. 

By  negligence  the  preference  may  be  lost,  as  if  before  the  levy,  the  first 
execution  runs  out  of  date,  the  second  execution  yet  having  some  time  to 
run  ; — the  lien  of  the  first  is  gone,  and  the  second  thus  gains  a  preference 
over  all  others.  Whether  the  effects  of  this  negligence  will  fall  on  the 
plaintiff  or  the  sheriff,  depends  upon  circumstances.  The  plaintiff  may, 
it  is  true,  if  he  chooses,  after  delivering  the  execution  to  the  sheriff,  remain 


364  OF  THE  FIERI  FACIAS.  [  book  3. 

a  silent  and  inactive  spectator.  1  Call,  22,  23.  He  may,  indeed,  be  con- 
sidered totally  unconcerned  in  the  transaction,  provided  the  defendant  has 
goods  ;  for  if  the  levy  is  made,  he  will  get  his  debt,  and  if  through  tiie  ne- 
gligence of  the  sheriff  it  is  not  made,  the  sheriff  will  be  responsible  for  it 
in  case  it  be  lost.  But  if  the  creditor  does  not  choose  to  remain  neuter, 
but  interferes  by  directing  the  sheriff  not  to  proceed  to  levy,  he  may  bring 
upon  himself  the  imputation  of  fraud,  as  in  the  cases  above  cited,  the  se- 
curities for  the  debt' may  be  absolved,  and  the  creditor  will  certainly  lose 
his  recourse  against  the  sheriff  if  he  has  given  indulgence  by  his  direction. 
See  6  Ran.  305. 

And  here  it  may  not  be  amiss  to  advert  to  another  consequence  of  this 
interference.  If,  in  such  case,  the  creditor  has  any  person  bound  as  secu- 
rity for  the  demand,  and  after  the  levy  of  the  execution  he  directs  the  pro- 
perty of  the  principal  to  be  given  (ip,  vi'ithout  the  consent  of  the  surety,  he 
loses  forever  his  recourse  against  him.  1  Call,  18.  lMun.269.  A  dis- 
tinction, indeed,  is  to  be  observed  herein,  between  the  act  of  the  sheriff  and 
the  act  of  the  creditor.  For  if  the  sheriff  levies  a  fifa,  and  of  his  own 
mere  motion  leaves  the  property  of  the  defendant  in  his  possession,  this  is 
no  release  of  the  security  ;  for  he  has  a  right,  if  he  pleases,  to  make  the 
defendant  his  bailee  to  keep  the  property  safely  until  the  day  of  sale,  or 
until  he  may  choose  to  remove  it.  He  is  responsible,  indeed,  in  such  case, 
for  its  forthcoming,  or  if  it  is  wasted  or  eloigned,  but  neither  the  lien  of  the 
execution  nor  the  right  of  property  which  became  vested  in  the  sheriff  by 
the  levy  is  thereby  lost.  But  when  the  plaintiff  himself  directs  a  return  of 
the  property  to  the  debtor,  it  is  thus  by  his  act  and  consent  put  out  of  the 
custody  of  the  law  in  which  it  had  before  been  ;  6  Ran.  305.  13  Vin.  524  ; 
there  is  no  longer  any  one  responsible  for  its  not  being  eloigned,  and  as 
the  security  might  thus  be  greatly  injured  if  he  were  in  such  case  still  held 
liable,  the  law  absolves  him  entirely.  In  short,  the  creditor  by  his  act  has 
chosen  to  trust  the  defendant  alone,  and  therefore  the  security  is  discharg- 
ed. Had  he  permitted  the  sheriff  to  retain  the  goods  under  the  execution, 
the  surety  would  have  been  relieved  by  the  sale  of  them  ;  or  had  they  been 
left  by  the  sheriff  with  the  defendant,  and  then  eloigned,  the  sheriff'  would 
have  been  bound  for  thn  money  ;  but  by  the  creditor's  own  act  he  has  taken 
the  sheriff's  responsibility  upon  himself.  There  is  no  way  of  relieving 
the  surety  if  the  goods  are  eloigned,  unless  the  creditor  is  made  to  bear 
the  loss,  which  he  ought  to  do,  as  it  results  from  his  own  officiousness. 
These  principles  will  be  found  maintained  by  the  cases  above  cited,  1  Call, 
18.  1  Mun.  269,  and  by  many  others  which  will  more  properly  be  arrayed 
when  we  take  an  equitable  view  of  this  matter. 

The  lien  may  be  lost  by  tlie  act  of  the  party;  for  in  the  case  just  men- 
tioned the  security  is  not  only  absolved,  I  conceive,  but  the  property  itself, 
which  had  once  been  in  the  custody  of  the  law  and  (if  I  may  so  speak)  of 
the  execution,  having  been  put  out  of  that  custody,  is  no  longer  in  any  wise 
held  or  bound  by  thai  execution.  For  the  execution  having  once  been  le- 
vied is  functus  officio.  It  cannot  be  levied  again,  whether  it  be  competent 
to  issue  a  new  one  or  not.  Nor  is  the  property  longer  vested  in  the  sheriff, 
since  it  was  divested  by  the  delivery  to  the  defendant  by  the  plaintiff's  or- 
der. It  is,  therefore,  clearly  liable,  I  apprehend,  to  the  execution  of  any 
other  person,  and  thus  the  lien  of  the  first  execution  is  lost  by  the  act  of 
tlie  party. 

Whether,  in  such  c"se,  the  plaintiff  can  issue  a  new  execution  on  the 
original  judgment,  docs  not  seem  quite  so  clear.  On  the  one  hand,  a  ///a  is 
generally  no  satisfaction,  unless  it  has  been  made  available  by  sale  of  the 
property  and  actual  jiayment  oflhe  debt.  2  Ld.  Ray.  1072.  3  Rand.  490. 
1  V/.  95.    And,  moreover,  in  the  case  of  Bullet  vs.  Winston,  (1  Mun.  269,) 


«MAr.  20.  ]  OF  FORTHCOMING  BONDS.  o65 

the  judge?  seem  very  scrupnlonsly  to  confine  themselves  to  the  opinion  that 
the  security  in  such  case  is  absolved,  but  waive  the  decision  of  the  question 
as  to  the  other  parties  to  the  judgment.  On  the  other  hand,  upon  princi- 
ple, if  the  security  is  absolved  not  in  equity  merely,  but  at  law,  it  is  not  con- 
ceivable how  any  other  execution  can  issue;  since,  on  this  supposition,  a 
separate  execution  must  issue  against  the  principal  only.  Such  a  separate 
execution  cannot,  as  we  have  seen,  be  maintained  ;  and,  moreover,  the  law 
knows  no  difference  between  the  principal  and  the  surety.  Now  in  the  case 
of  Baird  vs.  Rice,  (1  Call,  18,)  the  judges  distinctly  observe,  that  if  the  she- 
riff had  returned  the  facts  upon  the  execution,  it  would  have  been  a  total 
discharge  of  the  security  at  law.  Judge  Carrington  moreover  remarks,  that 
in  case  such  return  had  been  made,  "  no  new  execution  could  have  issued," 
and  Judge  Roane  observes,  that  the  transaction  amounted  to  "  a  new  con- 
tract ;  a  simple  contract,  indeed,  instead  of  a  judgment," — there  havino- 
been,  in  that  case,  a  promise  to  pay  the  debt  in  consideration  of  the  return 
of  the  property. 

Without  pretending  to  decide  this  question,  I  venture  to  suggest,  1.  That 
where  the  goods  are  restored  by  order  of  the  plaintiff  upon  a  new  promise, 
contract,  or  agreement  to  pay  the  debt,  as  was  the  case  in  Baird  vs.  Rice, 
the  surety  is  not  only  absolved  in  equity  and  at  law,  but  the  judgment  itself 
is  satisfied  and  discharged,  and  no  execution  can  issue  against  either  party. 
The  creditor  is  driven  to  an  action  upon  the  new  contract.  2.  That  where 
the  goods  are  directed  by  the  creditor  to  be  restored  to  the  debtor's  posses- 
sion merely  as  an  indulgence,  or  upon  his  undertaking  to  have  it  forthcom- 
ing at  the  day  of  sale,  but  without  any  new  arrangement  of  the  debt,  the 
judgment  is  not  discharged,  since  the  jifa  was  not  available,  but  a  new  ex- 
ecution may  issue  at  law  against  all  the  defendants,  and  the  remedy  of  the 
security  is  only  in  equity. 

It  may  not  be  improper,  however,  to  add  here,  that  a  mere  agreement  by 
the  plaintiff  in  the  first  execution,  that  the  sheriff  may  postpone  the  sale  of 
goods  after  a  levy  has  been  made,  has  been  decided  not  to  be  sufficient  of 
itself  to  deprive  him  of  his  preference,  and  to  give  priority  to  a  subsequently 
levied  execution.  Lisle  vs.  Orrick,  Winchester  superior  court.  And  with 
good  reason,  for  the  plaintiff  in  the  second  execution  may  direct  his  execu- 
tion to  be  levied  on  the  same  goods,  and  may  force  a  sale  if  he  pleases, 
that  he  may  have  any  surplus  after  satisfying  the  first ;  but  the  sheriff  must 
in  such  case  retain  enough  to  satisfy  it.  Another  instance  is  afforded  by 
the  books,  of  a  party  losing  his  lien  by  his  own  act :  as  where  the  plaintiff 
sues  out  a  second  execution  before  the  property  taken  by  the  first  is  dis- 
posed of,  he  waives  the  first  execution  and  destroys  the  lien  on  the  property. 
Eckols  vs.  Graham,  1  Call,  49:2. 

I  proposed  under  this  head  to  speak  of  the  effect  of  a  forfeited  forthcom- 
ing bond  upon  the  lien  of  the  execution ;  but  it  will  be  necessary  first  to 
give  a  short  account  of  forthcoming  or  delivery  bonds,  to  enable  the  stu- 
dent to  comprehend  the  remarks  which  follow.  Such  an  account  forms  in- 
deed, in  Virginia,  an  essential  part  of  an  essay  upon  the  writ  of  fieri  facias; 
and  the  subject  will  therefore  be  taken  up  again  when  we  come  to  consid- 
er the  proceedings  after  a  levy. 

By  the  terms  of  this  species  of  execution  the  officer  is  directed  "of  the 
goods  and  chattels  of  the  defendant /o  cause  to  be  made"  the  amount  of  the 
plaintiff's  demand;  and  the  nature  and  meaning  of  the  mandate  is,  that  he 
shall  seize  the  goods  and  chattels,  and  sell  so  much  of  them  as  may  be  ne- 
cessary for  the  purpose  of  raising  the  requisite  sum.  To  prevent  an  utter 
sacrifice  of  the  defendant,  and  to  secure  as  fair  and  advantageous  sale  of 
his  property  as  circumstances  and  the  demands  of  justice  will  permit,  our 
law  has  provided,  that  ten  days'  notice  of  the  time  and  place  of  all  sales 


366  OF  FORTHCOMING  BONDS.  [  BOOK  3. 

under  execution,  shall  be  given  by  advertisement  at  the  court-house  door, 
on  a  court  day,  and  also  at  some  public  place  near  the  debtor's  residence. 
Hence  it  is  obvious,  that  ten  days — perhaps  weeks — may  elapse  before  the 
sale  can  take  place.  In  the  meantime  if  the  sheriff  or  officer  continued  to 
keep  the  property,  the  defendant  would  not  only  be  deprived  of  its  use, 
but  moreover  would  be  subject  to  very  ruinous  expenses,  for  the  mainte- 
nance and  support  of  such  property  as  stocks,  slaves,  £cc.  See  1  R.  C. 
ch.  134,  §  15,  24.  Moreover,  he  may  have  reasonable  hopes  of  being  able 
before  the  day  of  sale  to  make  the  debt,  if  in  no  other  way,  at  least  by  a 
less  destructive  sale  of  his  property  than  that  which  is  usual  when  the  sale 
is  conducted  by  the  sheriff.  From  these  and  perhaps  other  causes,  the 
legislature  has  benignly  provided,  that  if  the  owner  will  give  to  the  sheriff 
or  officer  serving  the  execution,  bond  with  sufficient  security  to  have  the 
property  forthcoming  at  the  day  and  place  of  sale,  the  sheriff  shall  there- 
upon suffer  the  property  taken  to  remain  with  the  debtor  and  at  his  risque 
until  the  time  appointed  for  sale.  And  if  the  debtor  or  his  securities  fail 
to  deliver  the  property  to  the  sheriff  at  the  day  and  place  of  sale,  or  to  pay 
off  the  execution,  the  bond  is  directed  to  be  returned  to  the  office  with  the 
execution,  and  it  then  has  the  force  of  a  judgment :  and  the  creditor  may 
upon  ten  days'  notice,  move  for  and  obtain  an  award  of  execution  on  the 
bond,  against  the  principal  and  his  securities,  on  which  last  execution  the 
defendants  shall  not  have  the  privilege  again  of  giving  a  forthcoming  bond  ; 
to  indicate  which,  the  execution  is  endorsed  "  no  security  to  be  taken." 
1  R.  C.  ch.  131,  §  10.  The  bond  thus  taken  is  called  indifferently  a  forth- 
coming or  delivery  bond.  It  is  so  called,  because  the  goods  taken  in  ex- 
ecution are,  by  the  directions  of  the  act,  delivered  to  the  owner  on  his 
giving  bond  with  security,  conditioned  to  have  the  goods  forthcoming  at  the 
day  of  sale. 

Having  premised  this  short  account  of  forthcoming  bonds,  I  proceed,  as 
I  proposed,  to  speak  of  the  effect  of  a  forthcoming  bond  in  relieving  the 
property  from  the  lien  of  the  execution.  And  here  the  distinction  is  be- 
tween the  effect  of  the  bond  before  and  after  it  is  forfeited.  After  the  forth- 
coming bond  is  forfeited,  the  goods  which  were  taken  and  re-delivered  on 
its  execution  are  entirely  free  and  discharged  from  that  execution  forever, 
and  the  forthcoming  bond  is  a  complete  satisfaction  of  that  execution, 
though  it  may  or  may  not,  according  to  circumstances,  be  a  satisfaction 
of  the  judgment.  For  if  the  forthcoming  bond  be  quashed  the  same  exe- 
cution cannot  be  levied  again,  but  it  should  be  quashed  also,  (1  W.259.  2 
W.  189,)  and  then  a  new  execution  may  issue  upon  the  judgment  as  if  the 
former  never  had  been  ;  for  though  a  forthcoming  bond  is,  while  it  remains 
in  force,  a  barrier  to  any  other  proceedings  on  the  judgment,  (3  Rand. 
490,)  yet  after  it  is  quashed  it  is  as  if  it  had  never  been.  1  R.  C.  ch.  131, 
§  18. 

But  before  the  forthcoming  bond  is  forfeited,  though  it  is,  as  in  the  other 
case,  until  it  be  quashed,  a  suspension  of  the  judgment,  yet  the  lien  on  the 
property  remains,  and  no  other  execution  can,  until  forfeiture,  be  levied  up- 
on it:  and  if  the  sheriff,  after  taking  a  forthcoming  bond,  accept  the  same 
goods  from  the  defendant  in  discharge  of  his  body  from  another  execution, 
and  thereby  prevent  the  security  from  complying  with  the  condition  of  his 
bond  by  delivering  ilie  property,  a  court  of  equity  will  restrain  by  injunction 
the  proceeding  on  the  bond  against  the  surety,  leaving  the  plaintiff  to  his 
remedy  against  the  sheriff;  for  the  surety  has  a  right  to  deliver  that  pro- 
perty on  the  day  of  sale,  if  he  can  peaceably  obtain  possession  thereof.  3 
Mun.  417. 

6.  What  amounts  to  a  levy.  To  constitute  an  effectual  levy  it  is  not  es- 
sential that  the  officer  should  make  an  actual  seizure  ;  if  he  have  the  goods 


CHAP.  20.]  OF  FORTIICOiMING  BONDS.  3G7 

in  his  power  and  view,  this  may  suffice ;  as  where  certain  slaves  were  in 
the  presence  of  the  officer,  on  wliich  he  declared  that  he  levied  the  execu- 
tion on  them,  and  thereupon  took  a  list  of  them,  hut  did  not  touch  them, 
and  went  away  without  removing  them  from  the  dehtor's  custody  on  his  en- 
gaging to  produce  them  at  the  day  of  sale  ;  this  was  nevertheless  deemed 
a  good  levy.  1  Mun.  270,  278,  283.  It  is  admitted,  too,  that  seizure  of 
part  in  the  name  of  the  whole,  is  enough  to  make  a  levy  on  the  whole ;  1 
Ld.  Ray.  725;  and  this  in  various  instances,  as  in  levying  an  execution 
upon  a  store  of  goods,  library  of  books,  a  heap  of  wheat,  crops,  &c.  in  a 
barn,  or  in  stacks.  And  so  where  property  is  brought  within  the  proximity 
of  the  officer,  so  that  he  may  be  said  to  have  it  in  his  power;  as  slaves  in 
a  room,  or  within  a  short  distance,  or  going  home  with  the  sheriff,  or  on 
their  way  to  gaol,  though  he  never  touches  them.     1  Mun.  276. 

If  after  having  levied  an  execution,  the  sheriff  permits  the  defendant  to 
get  possession  of,  and  waste  or  eloign  the  goods,  he  is  responsible  to  the 
plaintiff  if  there  be  not  enough  to  pay  his  debt.  And  in  like  manner  if  he 
takes  the  goods  and  permits  them  to  be  wasted  or  destroyed  by  any  person 
other  than  the  defendant  lie  is  responsible  also  to  hbn. 

When  slaves  are  taken  in  execution  and  sold,  their  names  are  required 
by  law  to  be  certified  on  the  back  of  the  execution,  and  the  execution  re- 
turned to  the  office  and  recorded.  This  regulation  is  to  prevent  subse- 
quent purchasers  from  being  deceived.  1  Call,  492.  But  the  omission 
will  not  vitiate  a  judgment  on  a  forthcoming  bond  taken  on  the  execution. 
3  Mun.  308. 

When  a  party  defendant  enters  into  a  forthcoming  bond,  the  condition 
whereof  recites  that  certain  property  of  the  defendant  is  in  possession  of 
the  officer,  taken  by  virtue  of  an  execution,  the  parties  to  the  bond  are  es- 
topped, f  conceive,  from  denying  the  levy,  or  that  such  property  was  taken. 
See  2  Call,  507. 

7.  Of  the  proceedings  after  the  levy.  When  the  sheriff  has  levied  the 
execution,  he  ought  to  proceed  in  convenient  time  to  the  sale  of  the  goods^ 
for  the  purpose  of  raising  the  amount  due.  The  student,  by  adverting  to 
the  statute  law,  I  R.  C.  ch.  134,  §  15,  24,  and  to  some  subsequent  acts,  will 
perceive  that  the  debtor  whose  property  is  taken  in  execution  is  subjected 
by  law  and  of  necessity  to  a  heavy  expense  between  the  time  of  the  levy 
and  that  of  the  sale.  In  England  no  remedy  for  this  has  ever  been  devised, 
as  far  as  I  am  informed,  but  in  Virginia  one  has  been  long  afforded  by  our 
laws,  which  it  must  be  confessed,  however,  has  been  much  abused  by  be- 
ing made  an  instrument  of  delay.  The  remedy  alluded  to  is  the  forthcom- 
ing or  delivery  bond,  of  which  I  have  already  said  something.  See  I  R.  C. 
ch.  134,  §  16. 

It  would  lead  us  too  far  from  our  present  subject  if  I  were  to  dilate  upon 
the  fi-uitful  theme  of  forthcoming  bonds.  I  shall,  therefore,  only  take  no- 
tice here  of  some  general  principles  respecting  them,  and  mention  a  few 
of  the  numerous  cases  that  have  occurred  concerning  them. 

As  the  forthcoming  bond  is  a  satisfaction  of  the  execution,  and  when  dis- 
charged is  to  be  considered  also  a  satisfaction  of  the  judgment,  it  is  ob- 
viously proper  that  it  should  clearly  appear  upon  what  execution  it  was  taken. 
Hence  all  the  common  law  rules  in  relation  to  accuracy  in  recital,  prevail 
in  relation  to  them,  in  very  great  strictness;  so  that  if  in  the  recital  of  the 
execution  the  names  of  the  parties  or  the  sum  or  kind  of  execution  are 
misrecited,  it  will  generally  be  fatal.  1  W.  259.  2  W.  189.  1  Mun, 
605.  1  Rand.  211.  No  judgment  can  be  obtained  on  the  bond,*  and  both 
the  bond  and  execution  must  be  quashed,  so  as  to  enable  the  party  to  have 
another  execution.  By  this  means  it  sometimes  happens  that  the  debt  is 
*  Greater  liberality  seeraa  to  have  prevailed  occasionally  in  this  matter.    Se9  2  H.  &  M.  100. 


868  OF  FORTHCOMING  BONDS.  [  BOOK  3. 

lost,  as  the  party  in  the  meantime  may  have  become  insolvent.  The  she- 
riff is  in  sucli  case  of  course  liable  to  the  plaintiif,  because  he  has  taken  a 
faulty  bond,  and  he  is  liable  at  all  events  to  the  costs  of  the  motion  on  the 
bond,  and  of  quashing  it. 

The  bond  being  intended  as  a  security  for  the  production  of  the  proper« 
ty  at  the  day  and  place  of  sale,  a  day  and  place  oi'  delivery  must  be  appoint- 
ed of  course  ;  1  W.  161  ;  though  it  is  not  necessary  that  the  place  should 
be  designated  as  the  place  of  sale,  (1  W.  254,)  nor  the  day  as  the  time  of 
sale.  1  W.  69.  Nor  is  it  necessary  that  it  should  expressly  recite  the 
levy  on  the  defendant's  property,  if  that  sufficiently  appears  by  the  bond. 
2  H.  &.  M.  100.  2  Mun,  ^66.  The  bond  should  also  be  taken  to  the  cre- 
ditor, as  it  is  his  judgment  which  is  to  be  barred  ;  and  not  to  the  sheriff; 
2  W.  190;  for  herein  the  act  is  explicit.  It  is  also  essential  that  in  the  ob- 
ligatory part  of  the  bond  there  be  a  penalty  inserted,  or  no  judgment  can 
be  rendered  on  it.     6  Mun.  32. 

It  is  observable  that  the  property  thus  restored  is  to  remain  in  the  pos- 
session of  the  debtor  at  his  risk.  And  to  save  the  penalty  and  relieve  the 
security  in  the  bond,  the  condition  must  be  strictly  performed.  The  non- 
delivery of  a  part  of  the  property,  however  minute,  amounts  to  a  forfeiture 
of  the  whole  bond  ;  and  even  a  court  of  equity  will  not  relieve  against  it, 
though  the  non-delivery  was  owing  to  an  accident,  as  the  absconding  of 
one  of  several  slaves  mentioned  in  the  bond.  Gilmer,  134.  The  conse- 
quences of  this  doctrine  may  be  very  serious  to  securities.  Thus  if  on  an 
execution  for  $1000,  household  property  to  the  amount  of  only  $100  is  ta- 
ken, and  a  bond  be  given  for  its  forthcoming,  and  a  single  chair  or  teacup 
is  missing,  the  security  becomes  liable  for  the  whole  sum  of  $1000,  and 
credit  is  only  given  for  the  proceeds  of  sale  of  what  remains.  I  have 
never  known  a  forthcoming  bond  taken  in  a  penalty  incommensurate  with 
the  amount  of  the  execution;  but  in  the  case  above  stated  I  think.it  might 
well  be  questioned  whether  the  penalty  ought  not  to  be  made  commensu- 
rate only  to  the  value  of  the  property,  since  otherwise  the  defendant  may  in 
effect  be  deprived  of  the  benefit  of  the  law  from  inability  to  get  security  for 
the  larger  sum.  Sed  qucure.  The  property  must  be  delivered  to  the  sheriff 
before  4  o'clock  of  the  day  of  sale,  or  the  bond  will  be  forfeited.    3  Ran.  554. 

The  penalty  of  the  bond  may  be  saved  if  the  party  obtains  an  injunction 
or  supersedeas  anterior  to  its  forfeiture  ;  2  Call,  127  ;  6  Mun.  181  ;  but  af- 
ter it  is  forfeited  the  injunction  or  supersedeas  will  not  operate  a  discharge 
of  the  condition.     6  Mun.  181. 

I  have  already  said  that  if  the  execution  be  misrecited,  no  judgment  can 
be  obtained  on  the  bond,  and  it  must  be  quashed.  But  if  the  defendant 
appears  and  contests  the  motion,  he  must,  in  order  to  avail  himself  in  a  su- 
perior court  of  the  variance,  or  of  any  other  error,  spread  the  execution  on 
the  record  by  bill  of  exceptions,  or  otherwise.  If  he  cocs  not,  all  will  be 
presumed  to  have  been  right : — and  when  the  defendant  has  appeared,  the 
court  will  not  look  into  the  execution  and  compare  it  with  the  bond.  2 
Mun.  266.  1  Ran.  1.*  Where,  however,  the  judgment  has  been  render- 
ed by  default,  (i.  e.  without  any  appearance,)  there  it  seems  to  have  been 
determined,  in  one  case,  that  the  court  may  look  into  the  execution,  though 
there  be  no  bill  of  exceptions.  1  Mun.  605,  609,  in  note.  See,  also,  4  Mun. 
380.  When  the  judgment  on  the  bond  states  that  notice  was  duly  proved, 
it  will  be  taken  for  granted  in  the  appellate  court,  unless  there  be  a  bill  of 
exception  shewing  the  contrary  :  but  if  the  judgment  contains  no  such 
statement,  and  the  defendant  did  not  appear,  the  judgment  will  be  reversed 
as  erroneous.    4  Mun.  380. 

•Where  the  court  below  quaslies  the  bond  for  a  variance,  and  there  is  an  appeal,  the  excculion  is 
of  necessity  a  pnrt  of  the  record.    2  Leigh,  5 15. 


CHAP.  20.]  OF  THE  FIERI  FACIAS.  869 

The  bond  need  not  be  actually  filed  in  llie  clerk's  office  previous  to  a 
rnotion  for  judgment.     2  Mun.  52-3. 

If  the  defendant  denies  the  execution  of  the  bond,  he  may  plead  non  est 
factum,  concluding  to  the  country  :  yet  the  court  may  cither  decide  the  plea 
themselves,  or  submit  the  issue  to  a  jury.  1  Rand.  I.  See  1  W.  356.  It 
would  seem  that  in  most  cases  the  issue  need  not  be  formally  made  up.  3 
Rand.  554.  But  as  the  defendant  must  swear  to  this  plea,  I  do  not  per- 
ceive how  a  written  plea  can  be  dispensed  with. 

On  a  joint  notice  judgment  may  be  taken  against  one  of  the  oblio-ors.  2 
Call,  3G8. 

If  a  forthcoming  bond  be  taken  for  too  much,  the  excess  may  be  releas- 
ed, and  the  bond  will  yet  support  the  judgment.  1  Call,  41,  47.  So  the 
excess  in  the  judgment  may  now  be  released  in  the  appellate  court.  1  R. 
C.  ch.  128,  §  109. 

If  the  original  judgment  be  for  interest  at  the  rate  of  five  per  cent.,  that 
an  the  forthcoming  bond  should  be  for  interest  at  the  same  rate.  1  Call, 
205. 

No  appeal /;-o;;i  a  superior  court  can  now  be  allowed  from  a  judgment  on 
a  forthcoming  bond.  I  R.  C.  ch.  64,  §  12.  The  only  remedy  is  by  writ 
of  error  or  supersedeas,  which  are  allowed  only  where  error  is  suggested, 
and  not  at  the  arbitrary  will  of  the  party.  The  appeal,  however,  still  lies 
from  the  judgment  on  a  forthcoming  bond  in  a  county  court. 

8.  Of  the  further  duty  of  the  sheriff.  If  ihe  property  be  delivered  at  the 
day  and  place  of  sale,  in  pursuance  of  the  condition  of  the  bond,  or  if  it 
yet  remains  in  the  sheriffs  hands,  no  bond  having  been  given,  the  sheriff 
proceeds  to  sale  at  the  time  fixed  therefor.  The  sale  is  always  by  auction 
to  the  highest  bidder  for  ready  money,  and  if  the  property  consists  of  slaves, 
mules,  work  oxen,  or  horses,  it  is  required  to  be  made  at  the  court-house, 
on  the  first  day  of  the  OGunty  court,  between  the  hours  of  ten  and  four,  un- 
less the  debtor  dispenses  in  writing  with  these  provioions  before  the  sale  is 
advertised.  See  1  R.  C.  ch.  134,  §  15.  Sess.  Acts,  Feb.  1820,  ch.  19,  §  2. 
March,  1821,  ch.  35.  Feb.  1822,  ch.  18.  To  prevent  purchasers  being 
deceived,  the  names  of  slaves  taken  and  sold  are  always  to  be  endorsed  on 
Ihe  back  of  the  execution.  1  R.  C.  ch.  134,  §  22.  I  Call,  492.  Tea 
days'  notice  at  least  of  the  intended  time  and  place  of  sale  must  be  given 
previous  thereto.  The  a<icount  of  sales  must  be  returned  in  thirty  days. 
Acts  of  1830,  ch.  25. 

In  proceeding  to  sell  under  the  execution  in  his  hands,  the  officer  often 
meets  with  embarrassments,  arising  from  a  claim  being  set  up  by  some 
third  person  to  the  property  taken  in  execution.  The  remedies  afforded  in 
this  case  at  the  common  law  were  various,  as  I  have  mentioned  elsewhere. 

Thus,  though  he  has  taken  the  property,  he  is  not  compellable  to  proceed 
to  sell,  if  he  discovers  his  error.  Or  if  he  still  doubts,  the  law  permits  him 
to  summon  a  jury  to  try  the  right  of  property,  and  if  the  verdict  is  that  the 
property  belongs  to  another  than  the  defendant,  he  is  justified  in  delivering 
it  up.  The  contrary  verdict,  however,  does  not  protect  him  against  the  suit 
of  the  true  owner.  Yet  he  is  not  without  relief,  for  the  court  of  law,  per- 
haps, might  interfere  if  he  be  still  reasonably  doubtfiil  about  the  right ;  1 
Bur.  37  ;  or  he  may  file  his  bill  in  chancery  against  the  several  parties  con- 
cerned in  interest,  and  compel  them  to  interplead  and  litigate  the  right  in 
order  to  ascertain  to  whom  the  property  belongs.  Id.  Such  were  the 
doctrines  of  the  common  law  :  but  the  sheriff  is  now  placed  out  of  all  dan- 
ger and  relieved  of  every  difficulty  by  the  provisions  of  our  statute  law.  1 
R.  C.  ch.  1-34,  §  25.  This  act  provides  that  if  there  be  doubts  as  to  the 
right  of  property,  the  sheriff  may  demand  a  bond  of  indemnity  of  the  plain- 
itiff  in  the  execution,  and  if  it  be  not  given,  he  is  justified  in  re-delivering 
VOL.  2—47 


370  OF  THE  FIERI  FACIAS.  [  book  3. 

t)ie  property  to  the  party  from  whom  it  was  taken  ;  and  the  lien  is  then 
gone,  though  the  goods  may  in  truth  have  been  the  defendant's  ;  and  they 
are  subject  to  any  other  execution  ;  for  if  the  plaintiff  will  not  have  them 
sold  for  his  debt,  he  ought  not  to  stand  in  the  way  of  others  who  may  be 
willing  to  indemnify.  If,  on  the  other  hand,  the  bond  be  given,  the  true 
owner  of  the  property  is  barred  of  his  right  of  action  against  the  sheriff, 
unless  the  obligors  in  the  bond  become  insolvent.* 

The  indemnifying  bond  required  to  be  given,  having  been  delivered  to  the 
officer,  he  is  bound  to  proceed  to  sell  the  property,  unless  he  be  restrained 
by  an  injunction.  And  though  heretofore  (on  the  authority  of  3  Mun.  99, 
559.  5  Mun.  103,  107,)  courts  of  chancery  have  been  very  liberal  in  in- 
terferinof  to  prevent  such  sales  at  the  instance  of  third  persons,  yet  it  would 
seen?  that  this  interference  should  be  confined  to  cases  of  slaves  taken  in 
execution,  or  of  such  other  property  as  if  sold  cannot  be  compensated  iri 
damages;  and,  moreover,  it  should  be  confined  to  applications  on  the  part 
of  the  owner,  and  not  of  an  incumbrancer.     3  Ran.  175. 

Though  it  is  the  duty  of  the  oflicer  to  proceed  promptly  to  sell  the  goods 
taken  in  execution,  yet  he  is  said  not  to  be  justifiable  in  selling  them  at  a 
very  great  sacrifice,  even  to  the  highest  bidder.  But  he  should  return  not 
sold  for  want  of  buyers.  If,  however,  a  venditioni  exponas  be  afterwards 
directed  to  him,  it  is  said  he  must  proceed  to  sell  for  the  best  price  he  can 
obtain.  See  3  Camp.  Ca.  523,  cited  Tate's  Digest,  227.  See  also  Salk. 
323.     9  Mod.  118.     6  Mod.  299.     Bac.  Execution,  M. 

We  must  not  conceive,  however,  from  this,  that  a  venditioni  exponas  is 
necessary  to  enable  the  sheriff  to  proceed  after  the  return  day  is  past;  for, 
as  has  been  already  said,  after  the  execution  has  been  levied,  the  sherifT 
may  and  ought  to  proceed  to  complete  the  duties  required  of  him  by  his 
precept.  The  venditioni  exponas  is  therefore  not  a  writ  of  necessity,  being 
rather  to  compel  the  sheriff,  when  guilty  of  laches,  to  do  what  he  has  au- 
thority to  do,  than  to  give  him  any  new  authority,  (1  Vez.  196,)  and  he 
may  sell  though  his  office  has  expired  ;  2  Cro.  73  ;  for  an  execution  being 
an  entire  thing,  he  \vho  begins  it  must  end  it.  2  John.  C.  R.  180.  And  if 
the  sheriff  who  has  levied  an  execution  goes  out  of  office,  though  he  turns 
over  to  his  successor  the  bodies  of  prisoners  in  execution,  he  does  not  trans- 
fer goods  taken  by  a  fifa:  for  he  must  proceed  to  sell  himself;  and  if  he 
fails  to  do  so,  then  a  writ  goes  to  the  acting  sheriff,  called  a  distringas  nuper 
vice  comitem,  to  compel  the  late  sheriff  by  distress  to  proceed  to  sell  and 
make  and  pay  over  the  money.     Dalt.  19.     Bac.  Sheriff,  I. 

At  coTnmon  law,  if  the  sheriff  died,  the  property  taken  went  into  the 
hands  of  his  executors,  who  were  liable  to  the  creditor's  action  whenever 
the  sheriff  died  before  satisfying  the  debt,  and  after  he  had  levied  the  exe- 
cution. See  Dalt.  517.  Cro.  Car.  539,  540.  But  no  distringas  lay  in  this 
case  against  the  executors.  1  Call,  295.  With  a  view  to  simplify  these 
doctrines,  our  law  has  made  certain  provisions  to  which  the  student  will 
be  pleased  to  turn.     1  R.  C.  ch.  134,  §  51,  &c. 

When  the  officer  has  made  the  debt  according  to  the  command  of  the 
precept,  it  was  originally  his  duty  to  have  the  money  in  court,  and  it  has 
been  held  that  not  even  a  payment  to  the  creditor  will  excuse  the  non-per- 
formance of  this  duty.t  The  rigor  of  the  rule,  however,  has  beori  much  re? 
laxed,  but  the  form  of  the  writ  yet  continues  to  direct  the  ofiiccr  to  have 
the  money  in  court  on  the  return  day,  and  there  appears  no  excuse  for 
omitting  this  duty,  except  a  payment  to  the  creditor.     The  sheriff,  howev- 

*  Constables  are  empowered  to  take  indemniry'mg  bonds  by  the  ant  of  ISoO,  cli.  3(5 
tit  ban  been  held  liirit  the  Fheiiff  r>  jiot  lin/mr/  irt  receive  the  debt  from  tlie  riefondaiit  In  dlnchDrgf 
nf  bisbodv,  and  a  pavment  to  him  m  no  dl«rh;irgfi  of  the  debt  asasainet  ihe  plaintiff.     14  K.4fiS.     IZ 
C.  L.  R.  273,  274.    3l-ev.20;i    2  Freeman,  482.    5!  Show.  1:^9.     Q»/rprr,  if  thi?  be  law  with  us. 


CKiLP.  20.]  OP  i^HE  LEVARI  FACIAS.  871 

fer,  may  certainly  make  Buch  payment  out  of  court  [to  the  creditor  or  his 
attorney]  if  no  circumstance  occurs  which  legally  obstructs  or  opposes  his 
doing  so — as  an  injunction  or  execution  in  his  hands  against  the  goods  of 
the  person  for  whose  benefit  he  holds  the  money.  In  the  last  case  he 
ought  not  to  pay  the  money  to  the  party,  but  should  obey  the  writ  strictly 
by  paying  it  into  court,  to  be  disposed  of  as  it  shall  direct.  1  Cranch,  136. 
Doug.  231.  In  late  cases,  however,  the  English  judges  seem  not  very  fa- 
vorably disposed  to  this  doctrine.  See  4  E.  510.  9  E.  48.  4  B.  &  P.  STO*. 
From  the  principles  developed  in  the  case  from  Cranch,  I  deduce  that 
though  the  sheriff's  return  is  in  general  to  be  taken  as  true  (unless  disprov- 
ed) where  he  has  strictly  pursued  the  writ,  yet  where  he  has  not  (as  where 
he  has  paid  the  money  lo  the  plaintiff",)  the  onus  probandi  lies  on  him  to 
establish  the  truth  of  the  return  "  money  paid  to  the  plaintiff"  or  "to  his  at- 
torney." 

If  the  sheriff  makes  a  false  return  he  is  liable  to  the  action  of  the  party. 
But  where  there  has  been  a  mistake,  the  courts  are  liberal  in  allowing  offi- 
cers to  amend  their  returns. 

The  clerk  of  the  court  is  entitled  by  law  to  forty  cents  for  each  execution 
issued  or  renewed  by  him.  Where  executions  run  out  of  date,  or  are  re- 
turned not  found,  and  are  renewed,  this  sum  is  included  in  the  renewed  ex- 
ecution, being  added  to  the  costs  contained  in  it.  For  the  judgment  being 
for  costs,  includes  all,  whether  prior  or  subsequent  to  it,  and  as  new  costs 
accrue  it  opens  to  receive  them.     3  Cranch,  i)'2. 

At  various  periods,  both  before  and  since  the  revolution,  debtors  have 
been  permitted,  in  case  the  goods  taken  could  not  be  sold  for  three-fourths 
of  their  value,  to  replevy  them  (that  is  to  have  them  returned  to  them)  up- 
on their  giving  bond  with  security  to  pay  the  debt  at  the  end  of  twelve 
months.  This  bond  was  called  a  replevy  bond,  and  had  the  force  of  a 
judgment.  These  laws  have  all  been  repealed  ; — it  is  to  be  hoped  for  ever. 
They  will  be  found  in  the  edition  of  1769,  edition  of  1794,  and  the  sessioil 
acts  since ;  and  many  cases  occur  in  our  books  respecting  them.  These 
are  collected  in  Munford's  and  Hall's  Indexes  to  the  Virginia  Reports,  un- 
der the  head  of  "  Replevy  Bonds."  It  would  be  an  unpiofitable  consump- 
tion of  the  short  time  allotted  to  us,  to  go  into  a  further  history  of  the  doc^ 
trines  respecting  them  here. 
We  proceed  next  to  consider, 

3.  "  A  third  species  of  execution  by  writ  of  levari  facias  ;  which  affects 
a  Irian's  goods  and  the  profits  of  his  lands,  by  commanding  the  sheriff  to 
levy  the  plaintiff's  debt  on  the  lands  and  goods  of  the  defendant:  whereby 
the  sheriff  may  seise  all  his  goods,  and  receive  the  rents  and  profits  of  his 
lands,  till  satisfaction  be  made  to  the  plaintiff.  Little  use  is  now  made  of 
this  writ;  the  remedy  by  elegit,  which  takes  possession  of  the  lands  them- 
selves, being  much  more  eflectual."  It  is  chiefly  used  in  England  in  cases 
of  ecclesiastics. 

I  have  little  to  advance  on  the  subject  of  this  species  of  execution.  It 
seems,  indeed,  to  have  gone  entirely  into  disuse,  as  Mr.  Blackstone  tells  us, 
the  elegit  having  superseded  it.  Yet  as  the  elegit  takes  but  half  of  the 
lands  by  extent,  and  the  levari  facias  takes  the  lohole  of  the  issues  and  pro- 
fits, it  might  sometimes,  perhaps,  be  a  very  convenient  execution. 

On  the  levari  facias  the  sheriff  was  commanded  "  </e  bonis  et  catallis  ei 
de  exitibus  et  proficiis  terrcc,"  that  is  "  of  the  goods,  and  chattels,  and  is- 
sues, and  profits  of  the  land,"  to  make  the  debt  of  the  plaintiff.  Under  this 
writ  he  can  take  all  the  goods  and  chattels  of  the  defendant,  and  the  crops 
which  are  growing  on  his  lands,  whether  freehold  or  leasehold  ;  and  the 
writ  moreover  commands  him  to  go  on  from  time  to  time  (see  Carth.  441,) 
to  take  the  rents  and  profits  of  the  !and  until  the  plaintiff  is  satisfied  hi»- 


372  OF  THE  ELEGIT.  [  BOOK  3. 

debt.  What  shall  be  accounted  the  issues  of  the  land,  see  2  Inst.  453.  It 
is  not  confined  to  artificial  profit,  for  grass  growing  may  be  taken.  Dalt. 
144.  So  far  as  this  execution  respects  the  goods  and  chattels,  it  does  not 
seem  to  differ  from  the  fifa,  for  though  on  an  elegit  the  sheriff  may  deliver 
the  goods  to  the  plaintiff  at  the  estimated  value,  he  cannot  do  so  on  a^ieri 
facias  ox  levari  facias.  Bac.  Execution,  C.  4.  Yet  this  difference  is  not 
material,  as  the  plaintiff  may  be  a  purchaser  at  the  sale.  See  Comb.  45-2. 
Carth.  419.     Such  is  the  common  practice. 

The  levari  facias,  however,  differs  very  essentially  from  the  elegit ;  for 
on  the  latter  the  goods  of  the  defendant  and  his  lands  are  both  delivered  to 
the  plaintiff  at  the  estimated  value.  But  in  the  levari  facias  the  sheriff  pro- 
ceeds himself  to  collect  any  rents  due  upon  the  lands  from  the  tenants  of 
the  debtor;  and  as  to  the  growing  crops,  he  may  also  proceed  to  sell  them 
while  growing,  and  the  purchaser  will  have  the  liberty  of  cutting  and  car- 
rying them  away. 

The  common  law  gave  only  this  execution  and  the  ^/a  against  the  debt- 
or; the  casa  and  elegit  are  both  creatures  of  the  statutes.  Plow.  441.  3 
Co.  11,  r2.  Dalt.  144.  Like  other  executions,  this  must  be  sued  out  with- 
in a  year,  or  a  scire  facias  will  become  necessary.     Dalt.  144. 

If  the  sheriff  upon  the  levari  facias  return  that  he  hath  levied  part  of  the 
sum,  which  he  hath  paid  to  the  plaintiff,  upon  this  return  the  plaintiff  may 
have  a  new  levari  facias  to  levy  the  residue.  This  is  called  a  sicut  alias 
levari  facias. 

The  execution  as  to  the  land  shall  be  of  whatever  the  party  had  at  the- 
day  the  judgment  was  rendered.  Dalt.  145.  But  as  to  the  goods  they  can 
only  be  bound  from  the  delivery  of  the  execution  to  the  sheriff,  for  so  the 
law  provides  not  only  as  to  the  ffa,  but  "  other  executions."  1  R.  C.  ch. 
134,  §  13.     It  was  otherwise  at  common  law.     Dalt.  145.     8  Co.  71. 

The  student  is  referred  to  Fitzherbert's  Natura  Brevium,  for  further  in- 
formation on  this  subject. 

It  will  be  observed  that  neither  in  the  first  section  of  the  execution  law, 
nor  in  any  other  part  of  the  act,  is  the  levari  facias  mentioned.  Being  a 
common  law  remedy,  it  is  not,  indeed,  by  this  omission  taken  away,  but  it 
affords  strong  evidence  of  the  entire  disuse  of  the  writ. 

4.  The  fourth  species  of  execution  is  the  writ  of  elegit  ,•  which  is  a  judi- 
cial writ  first  given  by  a  statute  of  Edward  I.,  and  now  expressly  given  also 
by  our  own  act  1  R.  C.  ch.  134,  §  1.  Of  this  Mr.  Blackstone  says:  "by 
the- common  law  a  man  could  only  have  satisfaction  of  goods,  chattels,  and-- 
the  present  profits  of  lands,  by  the  two  last  mentioned  writs  o(  fiem  facias, 
or  levari  facias,  but  not  the  possession  of  the  lands  themselves  ;  which  was 
a  natural  consequence  of  the  feodal  principles,  which  prohibited  the  alien- 
ation, and  of  course  tiie  incumbering  of  the  fief  with  the  debts  of  the  owner. 
And,  when  the  restriction  of  alienation  began  to  wear  away,  the  conse- 
quence still  continued;  and  no  creditor  could  take  the  possession  of  lands, 
but  only  levy  the  growing  profits :  so  that,  if  the  dcfertdant  aliened  his 
lands,  the  plaintiff  was  ousted  of  his  remedy.  The  statute  therefore  grant- 
ed this  writ,  (called  an  elegit,  because  it  is  in  the  choice  or  election  of  the 
plaintiff  whether  he  v^'ill  sue  out  this  writ  or  one  of  the  former,)  by  which 
the  defendant's  goods  and  chattels  are  not  sold,  but  only  appraised  ;  and  all 
of  them  (except  oxen  and  beasts  of  the  plough)  are  delivered  to  the  plain- 
tiff, at  such  reasonable  appraisement  and  price,  in  part  of  satisfaction  of  his 
debt.  If  the  goods  are  not  sutlicient,  then  the  moiety  or  one-half  of  his 
freehold  lands,  which  he  had  at  the  time  of  the  judgment  given,  whether 
held  in  his  own  name,  or  by  any  other  trust  for  him,  are  also  to  be  deliver- 
ed to  the  plaintiff;  to  hold,  till  out  of  the  rents  and  profits  thereof  the  debt 
be  levied,  or  till  the  defendant's  interest  be  expired  ;  as  till  the  death  of  the 


CHAP.  20.]  OF  THE  ELEGIT.  373 

defendant,  if  he  be  tenant  for  life,  or  in  tail.  During  this  period  the  plain- 
tiff is  called  tenant  by  elegit,  of  whom  we  spoke  in  a  former  part  of  these 
commentaries.  We  there  observed  that  till  this  statute,  by  the  ancient  com- 
mon law,  lands  were  not  liable  to  be  charged  with,  or  seised  for,  debts;  be- 
cause by  these  means  the  connexion  between  lord  and  tenant  might  be  de- 
stroyed, fi-audulent  alienations  might  be  made,  and  the  services  be  trans- 
ferred to  be  performed  by  a  stranger;  provided  the  tenant  incurred  a  large 
debt,  sufficient  to  cover  the  land.  And  therefore,  even  by  this  statute,  only 
one-half  was,  and  now  is,  subject  to  execution  ;  that  out  of  the  remainder 
sufficient  might  be  left  for  the  lord  to  distrain  upon  his  services.  This  ex- 
ecution, or  seising  of  lands  by  elegit,  is  of  so  high  a  nature,  that  after  it 
the  body  of  the  defendant  cannot  be  taken  :  but  if  execution  can  only  be 
had  of  the  goods,  because  there  are  no  lands,  and  such  goods  are  not  suf- 
ficient to  pay  the  debt,  a  capias  ad  satisfaciendum  may  then  be  had  after 
the  elegit ;  for  such  elegit  is  in  this  case  no  more  in  effect  than  a  fieri  fa- 
cias. So  that  body  and  goods  may  be  taken  in  execution,  or  land  and 
goods  ;  but  not  body  and  land  too,  upon  any  judgment  between  subject  and 
subject  in  the  course  of  the  common  law." 

In  order  to  a  more  comprehensive  view  of  this  subject,  and  to  enable  the 
stadent  the  better  to  become  master  of  some  of  its  intricacies,  I  must  here 
offer  him  a  disquisition  somewhat  at  length  ;  and  in  performing  this  duty  I- 
may  be  led  to  repeat  what  we  have  already  quoted  from  Mr.  Blackstone,  in 
order  to  preserve  unbroken  the  chain  of  my  reflections. 

At  common  law,  as  Mr.  Blackstone  tells  us,  there  was  no  remedy  pro-- 
vid'ed  for  the  creditor  against  the  land  of  the  debtor,  except  the  levari  fa- 
cias. The  remedy  by  elegit  is  the  creature  of  the  statute.  It  declared  that 
when  ']udgment  should  be  rendered  in  any  court,  it  should  be  at  the  election 
of  the  plaintiff  to  sue  out  a  writ  against  the  laiids  and  chattels  of  the  debtor ; 
and  that  the  sheriff  should  deliver  to  him  by  reasonable  extent,  all  his  chat* 
tels,  except  oxen  and  beasts  of  the  plough,  and  one-half  of  his  lands,  until 
his  debt  should  be  thereof  raised.  See  this  act  in  the  old  law  Latin  ;  Bac. 
Execution,  Elegit.  It  was  at  once  decided  under  this  statute,  that  the 
lands  of  the  debtor  were  bound  from  the  date  of  the  judgment,*  and  with 
good  reason,  as  the  plaintiff,  at  the  instant  of  obtaining  his  judgment,  might- 
make  his  election.  And  it  may  not  be  improper  to  remark,  also,  that  any 
lands  acquired  by  h'ltn  after  the  judgment,  were  always  deemed  liable  not 
less  than  those  he  held  at  the  time  of  its  rendition.  Fitz.  34,  249.  Dalti 
134.     Mr.  Blackstone  does  not  notice  this. 

We  have  not,  indeed,  re-enacted  this  statute  in  so  many  words,  but  our 
law  provides  (1  R.  C.  ch.  134,  §  1,)  that  any  person  who  has  recovered 
judgment  for  debt,  damages,  or  costs,  may,  at  his  election,  prosecute  writs 
of  fieri  facias ,  elegit,  and  capias  ad  satisfaciendum,  within  the  year,  against 
the  debtor,  and  it  then  proceeds  to  prescribe  the  form  of  the  elegit,  and  of 
the  inquisition  to  be  taken  under  it.  These  leave  some  points  perfectly 
clear,  which  could  otherwise  only  have  been  illustrated  by  reference  to  the 
learning  of  the  British  books.  Among  other  things  it  appears,  that  by  the 
mandate  of  this  writ,  the  sheriff  is  commanded  to  deliver  a  moiety  of  all 
the  lands  of  the  debtor  in  his  bailiwick,  whereof  he,  at  the  day  of  obtain- 
ing the  judgment,  was  seized,  or  at  any  time  afterwards.  Here,  then,  we 
have  the  principle  explicitly  adopted,  that  after-purchased  lands  are  bound 
and  liable  to  the  extent,  whatever  may  be  the  British  doctrine  on  the  sub- 
ject. 

*  The  whole  term  bring  considered  but  ns  one  day,  ajudgmenl  always  relates  back  to  the  first  day 
of  the  term,  (4  IVIuii.  539.)  so  that  an  alienation  during  the  term  is  avoided  hv  an  elegit  regularly  is- 
sued on  a  jud){ment  oljlained  during  the  eanie  term.  But  this  fiction  will  not  be  {Vermilted  to  work  b 
wrong.    3  Bai  n.  &  Cres.  317. 


874  OF  THE  ELEGIT.  [  book  3. 

It  may,  perhaps,  be  matter  of  question,  whether  land  in  which  the  debtor 
had  but  an  use  was  extendible  at  common  law  ;  for  while  we  are  on  the 
one  hand  told  in  the  pithy  language  of  Brooke,  quoted  by  Dalt.  136,  •'  Ters 
q.  met.  ud.  a  mon  use  pt  estre  inise  in  execution,'^  "  land  which  another  has 
to  my  use  may  be  put  in  execution,"  we  learn  from  Chief  Baron  Gilbert's 
treatise  on  uses,  page  o7,  that  an  use  was  not  extendible  ;  an  opinion  which 
Mr.  Blackstone  has  adopted,  (vol.  2,  3'i5,)  and  which  it  must  be  owned  is 
most  conformable  with  the  analogies  of  the  law.  Be  this  as  it  may,  the  lia- 
bility of  trust  estates  to  execution  has  been  fully  established  in  England  by 
the  statute  of  Charles  II.,  called  the  statute  of  frauds  ;  and  by  our  law  it  is 
expressly  declared,  that  "  estates  of  every  kind,  \\o\d.cn  or  possessed  in  trust, 
shall  be  subject  to  like  debts  and  charges  of  the  cestui  que  trust  as  they 
would  have  been  subject  to  if  he  had  the  same  interest  in  the  legal  estate 
thai  he  has  in  the  trust.  1  R.  C.  ch.  99,  §  30.  Hence  I  infer  that  a  trust 
estate  is  subject  to  like  charge  by  execution  as  if  the  debtor  had  the  legal 
title.  If  so,  it  may  be  proceeded  against,  I  presume,  by  writ  of  elegit.  It 
may,  indeed,  sometimes  happen  that  embarrassments  may  arise  in  such  pro- 
ceeding which  may  serve  as  a  foundation  for  a  resort  to  equity;  but  prma 
facie  the  creditor  ought  to  proceed  against  the  trust  estate  by  his  elegit. 
See  1  Mad.  30'2.  For  when  the  creditor  can  proceed  at  law  he  ought  to 
do  so,  before  he  can  resort  to  equity  for  its  aid  ;  and  that  he  can  proceed  at 
law,  has  been  settled  since  the  statute  of  Charles  ;  for  it  has  been  adjudged 
that  the  trust  estate  is  subject  to  extent,  except  in  the  case  of  a  trust  of  a 
term  for  years.  Hard.  495,  cited  I  Mad.  362.  We  must,  however,  attend 
to  these  distinctions. 

1.  By  the  statute  of  Charles  II.,  estates  of  inheritance  only  are  compre* 
hended.  It  does  not  extend  to  the  case  of  a  trust  of  a  term  for  years.  See 
8  East,  474,  486.  By  our  statute,  estates  of  every  kind,  holden  or  posses- 
sed in  trust,  are  embraced.  Execution,  therefore,  may  be  levied  here,  not 
only  on  the  trust  of  an  inheritance,  but  on  the  trust  of  a  term,  (which  can- 
not be  in  England,  8  E.  486  ;)  and  I  should  have  presumed  on  the  interest 
of  cestui  que  trust  in  personal  estate  conveyed  in  trust.     Yet  see  6  Ran. 

2.  An  equity  of  redemption  of  a  fee  (the  mortgagor  still  being  in  posses- 
sion) may  be  taken  in  execution.  1  Caine's  Ca.  Ex.  47.  I  John.  56. 
(Sed  vide  I  Leigh,  279.)  And  this  would  be  very  clear  under  our  law,  I 
conceive,  as  to  an  equity  of  redemption,  either  on  a  mortgage  in  fee  or  for 
years,  but  not,  it  is  said,  on  a  pledge  or  mortgage  of  personalty,  or  other 
mere  equity.     6  Ran. 

3.  It  would  seem  that,  even  at  common  law,  goods  pawned  may  be  taken 
in  execution  against  the  pawner,  upon  satisfaction  of  the  pledge.  Bro.  Abr. 
pledges,  pi.  24,  cited  and  admitted,  8  E.  476.  Now  a  mortgage  of  perso- 
nal property,  where  the  creditor  takes  possession,  and  a  pledge,  I  take  to  be 
the  same  thing,  and  so,  indeed,  they  ;.re  treated  in  all  the  books.  See  1 
Vez.  278.  3  Br.  C.  C.  21.  I  P.  Wms.  261.  2  Atk.  303.  Indeed  the 
term  mortgage  is,  perhaps,  not  very  accurately  applied  to  such  securities. 
If  this  doctrine,  then,  be  true,  the  pledge,  I  should  have  thought,  was  al- 
ways liable  to  execution,  subject  to  the  right  of  the  pawnee  to  be  paid  his 
debt  out  of  the  proceeds  of  sale.     Sed  vide  6  Rand. 

4.  But  though  an  equity  of  redemption  or  a  trust  estate  is  liable  to  exe- 
cution, as  I  conceive,  yet  the  statute  only  comprehends  what  may  be  pro- 
perly called  equitable  estates;  those  in  which  the  cestui  que  use  has  a  clear 
and  ascertained  beneficial  interest,  and  the  trustee  only  the  naked,  formal, 
legal  right.  Chancellor  Kent  confines  the  operation  of  the  act  to  "  fraudu- 
lent and  covenous"  trusts.  But  this  I  should  conceive  to  be  too  limited; 
while  on  the  other  hand,  it  would  be  going  too  far  to  suppose,  that  every 
mere  equitable  interest  in  lands  or  personalty  should  be  subject  to  execu- 


CHAP.  20.]  OF  THE  ELEGIT.  375 

tion.  Such  mere  equities  are  accordingly  adjudged  not  to  be  bo  liable,  and 
the  mischiefs  of  treating  them  as  liable,  are  very  forcibly  shewn  in  the  case 
of  Scott  vs.  Scholey,  8  E.  467.  The  only  object  of  the  statute  was  such 
an  equitable  estate  as  might  be  taken  in  possession  and  ])ernan(;y  of  pro- 
fits. See  2  Bro.  C.  Ca.  212.  As  to  the  elegit,  indeed,  this  is  particularly 
clear,  since  it  directs  the  extent  of  those  lands  only  of  which  the  parly  was 
seised. 

But  though  tiie  elegit  binds  the  lands  of  the  debtor  from  the  dnte  of  the 
judgment,  yet  the  goods  are  only  bound  from  the  delivery  of  the  writ  to  the 
sheriff  by  the  express  provisions  of  our  law.  ]  R.  C.  ch.  134,  §  I'i.  "  No 
writ  of  ffa  or  other  writ  of  execution  shall  bind,"  &c.  There  are,  however, 
two  distinctions  between  this  writ  and  the  fifa,  which  maybe  here  inciden- 
tally remarked.  1.  That  oxen  and  beasts  of  the  plough  are  privileged  from 
being  taken  by  this  writ,  though  liable  under  a  fifa.  2.  That  by  the  very 
language  of  the  elegit  the  goods  taken  are  to  be  delivered  to  the  plaintiff  at 
a  reasonable  price  and  extent,  instead  of  being  sold  as  under  njifa. 

It  is  next  proper  to  remark,  that  with  the  exception  of  the  oxen  and  beasts 
of  the  plough,  the  whole  of  the  defendant's  chattels  are  to  be  taken  and  de- 
livered, at  the  price  at  which  they  are  appraised,  to  the  plaintiff.  In  the 
denomination  of  chattels  we  may  remember  that  leases  for  years  are  com- 
prehended, and  these  accordingly  are  to  be  taken  upon  an  elegit.  But  they 
may  be  treated  by  the  sheriff  as  realty  or  personalty,  and  be  delivered  over 
at  a  gross  value  to  the  creditor  in  part  of  his  debt,  or  he  may  extend  them 
in  the  same  manner  as  a  freehold,  and  deliver  them  at  a  certain  anmml  va- 
lue. In  the  former  case  the  debtor's  interest  is  gone  forever  ;  in  the  latter, 
after  the  debt  is  paid,  he  shall  have  his  estate  again.  Plow.  5,  241.  8  Co. 
171.     2  Inst.  395.     Dalt.  1-37. 

If  upon  an  elegit  it  appears  to  the  sheriff  that  there  are  goods  and  chat- 
tels sufficient  to  satisfy  the  debt,  the  sheriff  ought  not  to  proceed  to  extend 
the  lands  :  2  Inst.  395.  Bac.  Execution,  C.  2  :  but  in  this  case  he  does  not 
treat  the  goods  as  under  a  fifa,  but  proceeds  by  appraisement  of  a  jury,  as 
will  be  hereafter  explained.  Yet  see  I  Strange,  226,  and  2  Strange,  874, 
v/here  it  is  said,  if  there  are  no  lands,  the  sheriff  need  take  no  inquisition, 
and  that  the  elegit  is  then  but  in  the  nature  of  a  common  fifa. 

Freehold  rents  may  also  be  extended  on  an  elegit,  for  the  writ  directs  the 
extent  of  all  the  lands  and  tenements  ;  and  a  freehold  rent  is  a  tenement. 
See  Bac.  ubi  sup.  (The  word  tenement  was  not  in  the  English  statute. 
Dalt.  135.)  But  a  dry  reversion  is  not  extendible,  for  it  has  no  immediate 
value  except  by  sale,  and  no  property  can  be  sold  unde.-  an  elegit.  Land 
held  bv  a  husband  in  right  of  his  wife  during  coverture  may  be  extended. 
Dalt.  1.36. 

But  though  all  the  goods  and  chattels  are  to  be  extended  except  oxen  and 
beasts  of  the  plough,  only  one-half  of  the  lands  of  the  debtor  can  be  ex- 
tended, for  such  is  the  provision  of  the  English  statute  to  which  our  act  has 
obvious  reference,  and  such,  indeed,  is  the  express  command  of  the  precept. 
But  if  A  obtains  two  judgments  against  B  at  the  same  term,  he  may  take 
out  an  elegit  on  each,  and  on  each  he  shall  have  a  moiety,  so  that  thus  he 
Avill  take  the  whole.  Hard.  23.  Bac.  xibi  sup.  Gilb.  Ex.  56.  If,  on  the 
other  hand,  A  gets  judgment  at  one  term,  and  C  at  a  subsequent  term,  and 
A  extends  a  moiety,  C  can  only  extend  a  moiety  of  the  residue,  or  one- 
fourth  of  the  whole.  Judge  Green,  however,  thinks  otherwise  ;  1  Leigh, 
143,  144  ;  and  he  seems  clearly  to  think  the  whole  may  be  taken  if  the  ju- 
nior judgment  is  first  executed,  and  afterwards  the  prior  judgment.    Id.  HS. 

We  will  proceed  next  to  inquire  what  steps  the  plaintiff  must  take  to  pre- 
serve this  lien  which  the  statute  has  given  to  his  judgment.  The  statute 
provides  that  the  plaintiff  may  at  his  election  sue  out  execution  against  the 


376  OF  THE  ELEGIT.  [  book  3. 

goods,  botly,  or  lanJs.  Tlie  English  statute  also  provided  that  he  might  at 
his  election  sue  execution  against  the  lands  and  chattels.  Such  election  is 
therefore  required  to  be  made.  And  how  ?  Either  by  issuing  his  elegit^  or 
hy  entering  upon  the  roll  in  England,  or  upon  the  record  book  here,  that 
he  hath  elected  to  charge  the  goods  and  half  the  lands,  which  would  be 
equal  to  issuing  the  elegit.  2  Call,  1S6.  Thus  the  entry  upon  the  execu- 
tion book,  or  upon  the  record  with  us,  might  be  to  this  eiTect :  "  A  B  vs. 
C  D.  In  debt,  &c.  This  day  the  plaintiff  came  by  his  attorney,  and  elect- 
ed to  charge  the  goods  and  half  the  lands  of  the  defendant  to  answer  his 
debt,  damages,  and  costs."  I  have  never  known,  however,  the  election  de- 
clared in  any  other  mode,  than  by  the  issue  of  the  elegit  itself.* 

When  must  this  election  be  made,  or  the  elegit  issue,  in  order  to  preserve 
the  lien  of  the  judgment  upon  the  lands. 

Here  we  must  remember  that,  at  common  law,  where  no  execution  was 
issued  within  the  year,  the  judgment  was  out  of  date  and  no  execution 
^vhatever  could  then  issue.  We  must  also  remember  that  by  our  law,  I  R. 
C  ch.  128,  §  1,  this  principle  seems  to  be  explicitly  recognized,  as  it  is 
there  provided  that  the  plaintiff  may  sue  out  his  execution  within  the  year. 
By  the  fifth  section  of  the  same  act,  however,  we  have  already  seen  that 
"judgments  in  any  court  of  record  where  execution  hath  not  issued,  may 
be  revived  by  scire  facias,''  and  so  "when  execution  hath  issued  and  no 
return  has  been  made."  This  act  is  not  retroactive  and  does  not  affect 
judgments  anterior  to  its  date.     Day  vs.  Peshel,  4  Mun.  104.     6  Mun.  32. 

Now,  from  this  state  of  things,  it  is  obvious,  that  at  common  law,  if  the 
plaintiff  sued  out  no  execution  for  a  year,  his  lien  on  the  land  was  gone,  for 
the  judgment  itself  was  in  effect  gone,  and  indeed  never  could  be  revived; 
for  the  power  to  revive  it  did  not  exist  at  common  law  but  was  given  by  the 
statute,  13  E.  1,  stat.  1,  ch.  45.  When,  indeed,  the  judgment  was  revived 
under  the  statute  by  the  scire /acias,  the  lien  of  the  judgment  upon  the  lands 
■of  the  debtor  was  also  of  course  revived,  because  that  lien  was  a  part,  and 
Indeed  a  most  essential  part,  of  that  judgment. 

But  even  after  the  scire  facias  was  given  by  the  statute,  the  original  prin- 
ciple was  preserved,  that  where  the  plaintiff  had  sued  no  execution  what- 
ever within  the  year,  he  could  not  after  the  year  obtain  any,  until  he  had 
availed  himself  of  his  statutory  remedy  by  scire  facias.  And  such  is  still 
the  law  under  our  statutes,  which  provide  that  execution  may  be  sued  with- 
in the  year,  (1  II.  C.  ch.  134,  §  1,)  but  that  where  no  execution  hath  issued^ 
the  judgment  may  be  revived  within  ten  years,  and  not  after.  1  R.  C.  ch. 
128,  §  5. 

Thus,  then,  where  the  judgment  has  been  rendered  for  more  than  one 
year,  and  no  execution  has  ever  issued,  the  lien  is  gone,  or  at  least  suspend- 
ed ;  and  if  no  scire  facias  be  issued  for  ten  years,  it  is  absolutely  gone  for- 
ever. We  have  before  said  that  where  no  execution  issued  on  a  judgment 
within  the  year,  the  judgment  is  presumed  to  be  satisfied,  because  it  can 
scarcely  be  supposed  that  the  party,  after  the  expense  of  prosecuting  his 
claim,  would  fail  to  enforce  it  if  it  were  not  paid,  yet  it  is  otherwise  where 
executions  have  issued  and  are  returned  not  satisfied,  or  have  issued  and 
not  been  returned  at  all.  In  the  first  case  the  presumption  of  satisfaction 
is  expressly  negatived  by  the  return ;  in  the  latter  it  is  very  much  weakened 
by  the  fact  that  the  party  has  been  prosecuting  his  claim,  and  has  been  pos- 
sibly foiled,  cither  by  the  negligence  of  the  officer  or  the  dexterity  of  the 
defendant.  In  these  cases,  therefore,  the  judgment  did  not  run  out  of  date 
at  common  law,  provided  it  be  kept  alive  by  continuances  on  the  roll,  and 
no  scire  facias  under  the  statute  was  necessary,  though  our  law  has  now 
provided  that  in  the  latter  case  new  executions  shall  not  continue  to  issue 
•  See  Lillie'B  Enu  les,  210.    2  Leigh,  129.    Tidd's  prac.  forms,  337. 


CHAP.  2a.]  OF  THE  ELEGIT.  3T7 

after  ten  years  shall  have  expired.  1  R.  C.  cli.  128,  $  5.  .  Hence  if  an  execu- 
tion of  any  kind  hath  issued  during  the  year,  the  judgment  does  not  run  out 
of  date,  whether  it  be  duly  returned  or  not.  Hence,  too,  the  practice  of 
issuing  an  execution  (of  some  kind  or  other)  and  permitting  it  to  lie  in  the 
office.  This  keeps  alive  the  judgment.  See  2  Inst.  471.  Co.  Litt.  290,  b. 
Bac.  Scire  facias,  C. 

Having  thus  shewn  that  by  the  suing  out  of  executions  within  the  year, 
the  judgment  is  always  kept  alive,  and  that  even  where  it  runs  out  of  dato 
for  want  of  an  execution  it  may  be  revived,  the  question  next  presents  it- 
self, "  What  is  the  effect  herein  upon  the  plaintiff's  lien  on  the  lands  ?" 
Does  that  continue  more  than  a  year  if  other  executions  than  an  elegit  are 
sued  out  ?  Is  it  revived  by  the  scire  facias  so  as  to  relate  back  to  the  ori- 
ginal judgment  ?  These  are  momentous  inquiries,  deserving  particular  at- 
tention. 

Let  us  consider  them,  first,  as  relates  to  the  debtor  himself;  secondly,  83 
respects  a  purchaser  from  him. 

1.  As  to  the  debtor  himself.  There  seems  no  reason  to  doubt  that  upon 
the  revival  of  a  judgment  by  scire  facias,  the  lien  upon  the  lands  of  the 
debtor,  so  far  as  they  are  yet  unaliened  by  him,  is  revived  in  its  pristine 
force  and  efficacy,  even  though  there  was  no  entry  on  the  roll  or  elegit 
within  the  year.  This  seems  to  be  admitted  in  all  the  books  upon  the  sub- 
ject. Indeed  the  courts  appear  to  have  gone  farther ;  for  where  there  was 
judgment  in  debt  and  no  execution  sued  out  within  the  year,  (so  that  the  judg- 
ment was  out  of  date,)  yet  the  plaintiff  was  permitted  to  have  an  award  of 
an  elegit  entered  on  the  roll  as  of  the  same  term  the  judgment  was  render- 
ed, and  thence  to  continue  it  as  if  there  had  been  no  return.  Bac.  Scire 
facias,  C.  1.  And  this  seems  not  to  have  been  thought  a  stretch  of  power 
by  the  court  of  appeals,  in  the  case  of  Eppes  vs.  Randolph.  2  Call,  186. 
I  conclude,  therefore,  that  by  the  scire  facias,  so  far  as  the  debtor  and  his 
lands  are  to  be  affected,  the  lien  is  revived  in  full  force. 

In  like  manner  in  the  case  of  an  execution  (other  than  the  elegit)  issued 
■within  the  year,  whereby  the  judgment  is  kept  alive,  the  result  would  seem 
to  be  pretty  much  the  same.  After  the  year  has  passed,  the  party  may  on 
motion  be  allowed  to  enter  the  election  on  the  roll  nunc  pro  tunc.  2  Call, 
186.  And  even  if  he  did  not,  he  might  after  the  year  sue  out  his  elegit  a- 
gainst  the  lands  of  the  debtor,  though  he  could  not,  as  we  shall  see,  affect 
any  intermediate  purchaser  from  him.     We  come  then  to  consider, 

2.  The  case  of  a  purchaser  from  the  debtor.  Herein  nothing  is  more 
clear  than  that  if  the  creditor  sues  out  his  elegit  within  the  year,  it  avoids 
all  mesne  conveyances,  however  valuable  the  consideration  ;  that  is  to  say, 
the  conveyance  by  the  debtor  subsequent  to  the  judgment,  will  yield  to  the 
superior  and  prior  lien  of  the  judgment  creditor;  who  may  enforce  his  el' 
egit,  though  issued  subsequent  to  the  conveyance,  and  turn  the  alienee  out 
of  possession.  Co.  Litt.  102,  a.  b.  8  Co.  171.  Bac.  Execution,  1.  And 
where,  within  the  year,  the  plaintiiTby  his  entry  on  the  roll,  or,  I  presume, 
by  issuing  an  elegit  (though  the  same  was  not  executed)  elected  to  charge 
the  land,  an  elegit  issued  after  the  year  would  avoid  all  intermediate  con- 
veyances, for  the  purchaser  had  notice  by  the  record  that  the  creditor  de- 
signed to  charge  the  land.  See  Mod.  217.  Ch.  Ca.  268,  cited  Bac.  Exe- 
cution, 1,  and  qucere. 

But  as  the  statute  authorized  the  suing  out  this  execution  at  the  election 
of  the  party,  within  the  year,  if  he  failed  within  that  time  to  enter  his  elec- 
tion on  the  roll,  or  to  sue  out  an  elegit,  as  soon  as  the  year  was  passed  any 
person  had  a  right  to  purchase  of  the  debtor,  and  his  purchase  never  could 
be  overreached  by  an  elegit  subsequently  sued  out,  or  by  a  subsequent  entry 
VOL.  2—48 


378  OF  THE  ELEGIT.  [book  3. 

on  the  roll.*  Nor  would  a  court  in  such  case  permit  an  entry  nunc  pro  tunc 
so  as  to  affect  an  intervening  purchaser ;  for  such  an  entry  is  but  a  legal 
fiction  contrived  to  support  justice,  and  is  never  permitted  to  do  an  injury 
to  a  third  person.  2  Call,  18(3.  It  is  therefore  clear  that  whether  the  plain- 
tiff's judgment  has  run  out  of  date  and  is  revived  by  scire  facias,  or  is  con- 
Uin^ued'  in  force  by  other  executions,  but  no  elegit  has  issued  or  entry  been 
made  on  the  roll  within  the  year,  a  purchaser  from  the  debtor  can  never  be 
made  liable,  and  a  subsequently  issued  elegit  will  not  overreach  his  right. 
See  Gilb.  Ex.  12. 

An  application  of  the  principles  we  have  been  developing,  will  assist  us 
in  solving  some  other  questions  in  relation  to  this  writ.  Thus  if  two  per- 
afons  have  judgments  of  different  terms  against  the  same  defendant,  he 
whose  judgment  is  prior  shall  prevail ;  where  there  are  two  judgments  of  the 
same  term,  each  extends  a  moiety,  and  thus  stand  on  the  same  footing.  I-f 
there  be  more  than  two  judgments  of  the  same  term,  those  who  first  sue 
out  their  elegils  have  preference.  See  3  B.  C  419.  Judge  Tucker's  note, 
19,  accordant.!  And  as  the  first  judgment  has  preference,  and  the  creditor 
has  time  during  the  year  to  make  his  election,  if  before  such  election  with- 
in the  year  the  second  judgment  creditor  sues  out  an  elegit,  and  then  an 
elegit  is  sued  upon  the  first  judgment,^  it  will  overreach  the  other,  though 
first  executed.  Sed  vide,  1  Leigh,  145.  But  the  tenant  by  elegit  on  the 
second  judgment  being  thus  ousted  by  superior  title,  will  be  entitled  to 
hold  over  after  the  first  is  satisfied.  4  Co.  G6.  Dalt.  135.  Qucere  if  in 
such  case  a  scire  facias  be  not  necessary.     Dalt.  1-36. 

Where  an  elegit  issues  on  one  judgment,  and  an  inquisition  is  found  and 
the  moiety  extended,  the  same  moiety  cannot  be  immediately  delivered  to 
the  creditor  on  a  second  judgment,  but  yet  the  sheriff  may  extend  the  lancf 
and  deliver  the  reversion  of  it  cu7n  ac  cider  it  ;  and  so  where  a  moiety  of  the 
liand  is  extended,  the  sheriff  on  the  second  elegit  can,  as  we  have  said,  de- 
liver possession  but  of  the  moiety  of  the  moiety  remaining  ;  but  he  may  al- 
so extend  the  reversion  upon  the  other  half,  qxiando  acciderit.     Dalt.  232. 

Another  important  question  has  arisen  under  our  late  statute.  It  is  pro- 
vided thereby,  that  every  sale,  conveyance,  and  transfer  of  real  estate  made 
by  a  debtor  in  execution,  shall  be  void  as  to  the  creditor  or  creditors  at 
whose  suit  he  is  so  in  execution  ;  unless  it  be  absolute  and  bona  fide  for  the 
payment  of  the  debt  of  such  creditor  or  creditors,  and  the  proceeds  be  paid 
or  secured  to  be  paid  within  a  reasonable  time  to  such  creditor  or  creditors. 
And  it  is  further  declared  that  everv  casa  shall  bind  the  real  estate  from  the 
time  of  the  levy.     1  R.  C.  ch.  134,'§  10. 

On  this  statute  various  questions  present  themselves. 

1.  It  is  sufficiently  obvious  from  the  principles  before  developed,  that  3. 
creditor  by  judgment,  if  he  sues  out  his  elegit,  or  enters  his  election  on  the 
roll  within  the  year,  takes  precedence  of  any  casa  levied  subsequent  to  his 
judgment.  See  1  Leigh,  278,  accord.  But  suppose  a  casa  be  levied, 
and  while  the  defendant  is  in  execution  another  gets  judgment  and  sues 
out  an  elegit  against  his  lands,  what  effect  will  the  casa  have  upon  the  writ 
of  elegit  ? 

Here,  I  apprehend,  that  as  the  creditor  by  casa  has  no  specific  remedy 
against  the  land,  but  only  such  a  lien  as  to  prevent  intervening  incumbran- 
ces or  alienations,  he  cannot  gainsay  the  right  of  the  plaintiff  in  the  elegit 
ta  extend  the  land.  1  Leigh,  278,  accord.  But  if  after  the  extent  the  debtor 
is  discharged  under  the  insolvent  act,  and  surrenders  his  lands  and  goods, 

•The  principle?  I:«i(l  down  in  Eppes  t)5.  Rundolpli  on  this  subject  are  very  serioufly  assailed  in 
Fox  vs.  Baylor,  not  yet  fully  reported.    The  court,  however,  was  not  full  and  was  divided. 

tMr.  Watkins  Leigh,  in  a  profound  opinion  which  I  have  seen  since  tliis  paragraph  was  written, 
tayi  lie  can  fijid  no  sucli  case  iu  (ho  books.    He  dees  not  concede  any  preference  to  either. 


CHAP.  20.]  OF  THE  ELEGIT.  379 

liere  the  deed  made  by  him  to  the  sheriff  will  relate  bacic  to  the  time  of  the 
levy  of  the  casa,  so  as  to  avoid  the  intervening  e/e^if.  (1  Leigh,. 257,  accord.) 
For  by  the  deed  made  at  the  discharge  of  the  debtor,  the  creditor  ceases  to 
have  a  mere  barren  lien — he  becomes  in  effect  a  mortgagee,  (for  the  sheriff 
■holds  in  trust  for  him,)  and  as  the  act  gave  him  a  lien  from  the  time  of  the 
levy,  so  this  specific  interest  in  the  lands  must  relate  back  and  avoid  all  in- 
termediate acts,  or  the  lien  would  be  without  effect.  It  resembles  the  lien 
of  a  fifa,  which  cannot  prevent  the  sale  of  any  particular  slave,  unless  by 
subsequent  levy  on  hitn  the  right  to  subject  that  identical  slave  to  execution 
is  fixed  and  ascertained:  but  when  that  is  done  it  avoids  all  mesne  levies 
•as  well  as  conveyances. 

If  this  construction  be  admitted,  the  consequence  will  be  that  the  subse- 
quent judgment  creditor  will  by  his  elegit  receive  the  intermediate  profits 
of  the  estate  during  the  continuance  of  the  debtor's  imprisonment  under  the 
casa,  but  that  upon  the  defendant's  taking  the  insolvent  oath  and  surrender- 
ing his  property  on  his  discharge,  the  creditor  by  casa  will  have  the  better 
title.  This  opinion,  however,  is  much  contested.  It  is  contended  by  those 
who  advocate  the  superiority  of  the  elegit,  that  the  law  did  not  intend  to 
avoid  intermediate  executions,  which  are  the  act  of  the  law,  but  only  inter- 
mediate sales,  conveyances,  and  transfers,  which  are  the  act  of  the  party ; 
and  that  the  clause  declaring  that  a  casa  shall  bind  from  the  time  it  is  levied 
was  only  intended  to  settle  precedence  between  various  casus,  and  not  to 
give  the  casa,  after  it  is  levied,  the  effect  of  excluding  other  executions  of  a 
different  character  :  and  a  like  argument  is  used  as  to  the  act  which  declares 
that  personal  property  shall  be  bound  from  the  time  of  the  levy  of  a  casa. 
On  the  other  hand,  it  is  contended  by  some  that  the  elegit  cannot  issue  to 
cover  the  intermediate  profits;  that  the  casa-creditor  may  enforce  his  lien 
by  bill  in  equity,  even  before  his  debtor  takes  the  insolvent  oath,  and  that 
the  lien  given  is  an  operative  lien  which  he  may  at  once  render  available. 
This  latter  opinion,  however,  seems  to  me  entirely  without  foundation  ;  but 
that  which  asserts  the  superiority  of  the  elegit  to  the  casa,  is  not  only  main- 
tained by  some  of  the  profoundest  members  of  the  profession,  but  is  not 
without  forcible  reasons  in  its  support.  It  has  hitherto  appeared  to  me, 
however,  liable  to  insurmountable  objections.  The  first  clause  of  the  act 
sufficiently  protects  the  creditor  against  sales  and  other  acts  of  ihe  party  ; 
the  latter  clause,  in  declaring  when  the  casa  shall  bind,  must  therefore  ob- 
viously have  reference  to  other  executions  which  are  the  acts  of  the  law. 
It  was  not  intended  merely  to  settle  the  precedence  among  them,  (though  it 
has  that  operation  also,  1  Leigh  277,)  since  the  debtor  may  by  his  deed 
place  them  all  upon  the  same  footing.  The  provision  is  analogous  to  the 
binding  effect  of  a  Jifa,  which,  though  until  a  levy  it  does  not  change  the  pro- 
perty, yet  when  the  levy  is  made,  it  relates  to  the  time  of  delivery  of  the 
writ  to  the  sheriff,  and  not  only  avoids  mesne  acts  of  ihe  party,  but  gives 
to  the  creditor  a  preference  over  a  subsequently  levied  execution.  1  T.  R. 
729.  Were  it  otherwise,  it  would  follow  that  after  a  casa  levied,  the  debtor 
might  not  only  confess  judgment  to  a  subsequently  brought  action  for  a 
subsisting  debt,  but  might  borrow  of  a  friend,  after  he  was  in  execution,  to 
the  value  of  the  land,  and  by  confessing  judgment  on  two  bonds,  and  en- 
abling him  to  sue  out  elegits^  evade  the  statute  and  defraud  the  creditor.  I 
still  incline,  therefore,  to  the  opinion  that  the  casa  will,  after  the  debtor 
swears  out  and  surrenders  his  property,  overreach  an  elegit  upon  a  judg- 
ment obtained  subsequent  to  the  levy  of  the  casa,  and  that  the  elegit  only 
has  the  effect  of  securing  the  intermediate  profits.  Since  this  was  written, 
two  cases  have  been  decided  on  this  point.  In  Jackson  vs.  Heiskell,  1 
Leigh,  257,  the  casa  lien  was  pronounced  superior ;  the  court  being  of 


880  OF  THE  ELEGIT.  [book  3. 

opinion  that  it  overreached  the  intermediate  judgment  and  execution.  In 
a  subsequent  case  of  Foreman  vs.  Loyd,  2  Leigh,  this  opinion  was  over- 
ruled, though  by  a  bare  majority  of  the  court. 

In  like  manner,  I  was  of  opinion  that  after  a  casa  levied,  the  goods  of  the 
debtor  are  so  far  bound  by  the  levy  that  no  subsequent  fifa  levied  on  the 
same  goods  can  divest  the  right  of  the  casa-creditor.  For  the  act,  by  de- 
claring that  the  goods  shall  be  bound  from  the  levy,  obviously  refers  to  the 
la;miliar  doctrine  of  the  fifa  binding  from  the  delivery  to  the  sheriff,  and 
must  have  intended  to  give  a  like  preference  to  the  first  execution.  The 
second  /i/a-creditor,  I  should  think,  might  indeed  still  levy  on  the  goods  and 
sell,  subject  to  the  lien  of  the  other;  for  during  the  confinement  of  the 
debtor  there  is  an  intermediate  interest  which  the  casa-creditor  cannot  ren- 
der available,  and  to  which  the  //a-creditor  would  therefore  have  a  just 
right. 

These  crude  suggestions  are  offered,  however,  with  much  diffidence,  and 
merely  with  a  view  of  turning  the  thoughts  of  the  student  to  the  subject. 
The  decision  in  the  case  of  Foreman  vs.  Loyd,  before  mentioned,  seems 
however,  to  have  established  a  construction  of  the  act  of  assembly  at  vari- 
ance with  the  opinion  that  the  levy  of  the  casa  would  suspend  or  avoid  the 
intermediate  execution. 

2.  It  is  to  be  observed  that  the  debtor  in  execution  may  make  a  valid  con- 
veyance of  his  real  estate  to  the  creditor  or  creditors  at  whose  suit  he  is  in 
execution,  or  for  their  benefit.  It  is  clear  that  he  may  place  them  upon  an 
equality,  so  that  no  preference  seems  to  be  intended  to  one  of  the  credi- 
tors over  another.  It  is,  indeed,  not  clear  that  he  can  give  a  preference  if 
he  even  wished  to  do  so,  since  the  language  of  the  act  strongly  indicates 
that  such  conveyance  must  be  for  the  benefit  of  all  the  creditors  at  whose 
suit  he  is  in  execution. 

3.  Suppose,  however,  the  defendant  dies  in  execution  ?  Then  the  plain- 
tiff is  remitted  to  his  right  to  sue  out  any  execution  against  the  lands  of  the 
debtor.  I  R.  C.  ch.  134,  §  8.  If  this  be  done  within  the  year  after  his 
judgment,  will  that  judgment  give  him  a  preference  ?  It  would  seem  not ; 
for  though  he  is  remitted  to  his  remedies  they  are  not  strengthened  by  the 
circumstance  that  the  debtor  had  been  in  execution.     1  Leigh,  276. 

I  will  venture  to  add  here  another  opinion  in  reference  to  this  act,  though 
it  does  not  relate  to  the  eleprit. 

The  act  avoids  all  deeds  made  after  the  levy  of  the  casa,  except  for  the 
benefit  of  the  casa  creditors.  Suppose  such  a  deed  made.  Can  the  cre- 
ditor, while  he  retains  his  debtor's  body  in  execution,  file  a  bill  in  equity  to 
set  aside  the  conveyance  and  to  subject  the  lands  to  the  payment  of  his 
debt?  I  apprehend  not.  For  he  has  no  specific  lien,  and  it  is  against  the 
Avhole  system  of  the  law  that  the  creditor  shall  hold  the  body  of  the  priso- 
ner and  yet  proceed  against  his  property,  except  in  cases  of  mortgage, 
where  it  is  done  by  his  own  assent  and  contract. 

A  few  things  yet  remain  to  be  added  on  the  subject  of  elegit. 

If  an  elegit  is  not  issued  before  the  expiration  of  the  year, — and  after 
that  time,  and  before  the  emanation  of  the  elegit,  the  debtor  sells  the  lands, 
the  purchaser  is  protected,  and  the  elegit  will  not  overreach  his  purchase. 
But  suppose  the  sale  is  made  within  the  year,  and  there  is  no  election  to 
charge  the  land  till  after  the  year,  will  the  elegit  then  issued  overreach  the 
claim  of  the  purchaser  under  the  deed  made  withiii  the  year  ?  I  apprehend 
it  will  not; 

1.  Because,  though  the  purchaser  bought  with  notice  of  the  judgment 
and  \vithin  the  year,  and  made  his  purchase  subject  to  a  subsisting  lien,  yet 
that  lien  ceased  at  the  expiration  of  the  year. 


oi{AP.  90.]  OF  RELIEF  IN  EQUITY.  881 

2.  Were  it  otherwise  great  difficulty  and  absurdity  would  ensue,  as  the 
following  case  will  shew: 

A  recovers  judgment  against  B,  who  within  the  year  gives  a  deed  of  trust 
to  C,  and  after  the  year  expires,  he  gives  another  deed  of  trust  to  D,  and 
A  then  issues  his  elegit.  JSow  the  elegit  confessedly  gives  way  to  D's  lien, 
because  he  took  it  after  the  year,  and  A  had  not  then  elected  to  charge  the 
land.  If,  then,  the  elegit  is  superior  to  C's  lien  given  within  the  year,  then 
this  absurdity  would  follow  :  that  G's  lien  would  be  superior  to  D's,  because 
of  its  priority,  and  yet  inferior  to  it  because  inferior  to  the  elegit,  which  it- 
self is  inferior  to  D's.  Thus  it  would  be  both  inferior  and  superior  at  the 
same  time,  which  is  impossible.  I  conclude,  therefore,  that  the  creditor, 
by  omitting  to  make  his  election  within  the  year,  loses  his  power  of  over- 
reaching even  such  deeds  or  liens  as  are  made  within  the  year. 

In  executing  an  elegit  the  sheriff  proceeds  by  summoning  a  jury  of 
twelve  men,  upon  whose  oaths  are  found  what  goods  and  lands  the  defen- 
dant hath,  which  they  estimate  at  a  fair  price  or  extent ;  the  term  price  re- 
ferring itself  to  the  value  of  the  goods  appraised,  and  the  term  extent  to  the 
annual  value  of  the  lands  estimated.  Nor  can  the  sheriff  deliver  any  goods 
in  execution,  or  extend  any  land?,  unless  they  have  been  first  appraised  and 
valued  by  jurors  of  the  inquisition.  4  Co.  74.  Dalt.  134.  Bac.  Sheriff, 
N.  The  sheriff  and  jury  usually  and  properly  go  to  the  premises,  which 
they  have  a  right  to  enter  peaceably,  but  may  not  break  open  the  gates  or 
doors.  They  can  estimate  only  those  lands  which  are  within  the  officer's 
bailiwick,  (i.  e.  county,)  for  the  writ  extends  only  to  them.  They  proceed 
to  appraise  the  goods  and  chattels,  and  to  estimate  the  annual  value  of  the 
lands,  and  then  to  set  out  by  metes  and  bounds,  distinctly,  a  fair  moiety  of 
the  lands  for  the  creditor.  Carth.  453.  1  Barn.  &  Aid.  40.  It  is  not  ne- 
cessary that  the  creditor  should  have  a  moiety  of  each  farm  or  tenement. 
It  is  sufficient  if  he  has  a  fair  moiety  of  the  whole  delivered  to  him.  Doug. 
473.  An  inquisition  setting  forth  these  matters  is  then  found  and  sealed 
both  by  the  jurors  aud  sheriff,  and  returned  with  the  writ.  The  sheriff 
thereupon  delivers  to  the  plaintiff  the  goods  and  chattels  at  the  appraised 
value  in  discharge,  so  far  as  they  will  go,  of  the  execution,  and  the  moiety 
of  the  land  ascertained  as  aforesaid,  to  hold  until  thereout  he  is  satisfied 
the  residue.  Formerly  he  put  the  plaintiff  into  actual  possession.  2  Eq. 
Cases,  381.  3  T.  R.  295.  Of  late  years  the  sheritT  only  delivers  legal 
possession,  and  the  plaintiff  is  left  to  acquire  actual  possession  by  eject- 
ment.    But  see  Rogers  vs.  Pitcher,  6  Taun.  202,  per  Gibbs  contra. 

Where  part  of  a  debt  is  levied  upon  an  elegit,  a  new  elegit  may  issue  for 
the  residue.  I  R.  C.  ch.  134,  §  3.  This  was  also  the  law  independent  of 
tliis  act.     1  Levinz,  92. 

Before  concluding  our  remarks  on  the  fruitful  subject  of  executions,  it 
may  not  be  amiss  to  remark,  that  by  the  modern  practice  relief  is  in  many 
instances  afforded  to  the  parties  by  motions  to  quash  executions.  See 
Tidd,  1047.  This  may  either  be  at'the  instance  of  the  plaintiff  or  defen- 
dant, according  as  the  one  or  other  is  the  party  injured.  Thus  if  the  exe- 
cution be  for  too  little,  the  plaintiff  may  himself  move  to  quash  it,  and  when 
quashed  he  proceeds  to  take  out  another  at  his  pleasure.  So  if  an  erro- 
neous forthcoming  bond  be  taken,  on  which  he  cannot  obtain  an  award  ot 
execution,  the  plaintiff  must  upon  motion  have  both  bond  and  execution 
quashed,  if  he  wishes  to  take  a  new  execution.  2  W.  189.  The  bond, 
indeed,  being  good  as  a  common  law  bond,  it  may  be  his  interest  to  stand 
by  it  and  bring  an  ordinary  action  upon  it,  in  order  to  charge  the  security  ; 
and  this  is  the  usual  course  where  the  defendant  has  become  insolvent,  and 
there  are  doubts  also  of  the  officer's  solvency.  But  if  the  defendant  yet 
continues  solvent,  the  creditor  by  quashing  both  bond  and  execution,  may 


382  OF  BELIEF  IN  EQUITY.  [  BOOK  3. 

proceed  by  a  new  execution  as  if  the  former  had  never  issued  or  been  le- 
vied. 

On  the  other  hand,  the  defendant,  if  aggrieved  by  an  irregular  execution, 
may  proceed  by  motion  to  have  it  quashed  :  and  so,  if  since  the  judgment 
he  has  paid  the  debt,  and  an  execution,  nevertheless,  issues  against  him,  he 
may  upon  motion  prove  his  payments  and  have  the  execution  quashed. 
For,  according  to  the  principles  of  the  law,  he  might  herein  have  been  re- 
lieved by  audita  querela,  and  this  motion  is  a  convenient  substitute  for  that 
antiquated  writ.     See  I  John.  50. 

The  following  may  be  added  as  another  case  in  which  this  remedy  would 
tie  appropriate. 

We  have  seen  that  by  the  modern  practice,  if  there  are  several  plaintiffs 
or  defendants,  and  one  dies  after  judgment,  his  death  is  suggested  on  the 
roll,  and  the  execution  issues  without  the  scire  facias.  Sellon,  518.  If, 
however,  this  suggestion  be  untrue,  it  would  be  competent  to  the  defendant 
upon  motion  to  shew  the  fact  and  have  the  execution  quashed  for  irregu- 
larity. 

In  all  cases  of  motions  to  quash  executions,  a  notice  is  given  to  the  ad- 
versary party,  or  a  rule  is  made  upon  him  in  court  to  shew  cause  against 
the  motion,  at  a  specified  day. 

Intimately  connected  with  executions  is  the  inquiry  how  far  a  court  of 
equity  will  lend  its  aid  to  a  plaintiff  in  an  action  at  law,  where  he  meets 
\vith  obstacles  to  rendering  his  execution  available  ?  I  propose,  therefore, 
io  advert  to  the  doctrines  on  this  subject  under  several  heads. 

I.  In  what  cases  will  equity  lend  its  aid  to  the  plaintiff  iu  an  action  where 
he  meets  with  obstacles  to  his  execution? 

1.  Although,  as  we  have  seen,  our  statute  declares  that  trust  estates  shall 
.be  lial)le  to  the  debts  of  the  cestui  que  trust,  yet  it  seems  now  to  be  well  un- 
■derstood  that  this  clause  embraces  those  express  trusts  only,  in  which  tlie 
cestui  que  trust  has  the  whole  beneficial  interest,  and  the  trustee  only  the 
naked,  formal,  legal  title  ;  it  does  not  reach  the  case  of  a  mere  equity  ;  1 
John.  55,  56  ;  for  a  judgment-creditor  cannot  come  at  a  mere  equity  by  an 
execution  at  law.  He  must  go  into  chancery,  or  he  cannot  have  the  bene- 
fit of  it.  2  John.  .31-2.  5  John.  Kep.  335.  8  E.  4G7.  When,  therefore, 
the  creditor  has  taken  and  exhausted  all  the  means  in  his  power  at  law,  he 
will  be  entitled  to  the  aid  of  a  court  of  equity  to  discover  the  equitable  in- 
terest, and  to  make  it  available  for  his  execution.*  4  John.  C87.  But  be- 
fore he  can  do  so,  he  must  first  have  taken  out  his  execution  and  caused  it 
to  be  levied  and  returned,  so  as  to  shew  a  failure  of  his  remedy  at  law  ; 
and  when  he  has  done  this,  he  acquires  a  legal  preference  to  the  assistance 
of  equity,  or  a  lien  on  the  equitable  interest,  which  cannot  be  affected  or 
impaired  by  a  subsequent  assignment  by  the  debtor;  and  though  equitable 
assets  are  usually  distributed  pari  passu,  yet  in  this  case  the  creditor's  pre- 
ference will  be  preserved  to  him  in  the  distribution  of  the  assets.  Ibid.  1 
Leigh,  14*2. 

2.  Where  a  debtor  has  made  a  conveyance  of  his  property  in  fraud  of  his 
creditors,  such  conveyance  is  declared  by  the  statute  to  be  void.  It  is  there- 
fore void  not  only  in  equity  but  at  law,  and  even  in  a  court  of  law  will  yield 
to  the  superior  claims  of  a  creditor.  If,  therefore,  the  debtor  make  a  fraudu- 
lent conveyance  of  a  slave  after  the  delivery  of  an  execution  against  his 
goods  to  the  sheriff,  or  of  his  lands  after  a  judgment  against  him,  and  the 
plaintiff  sues  out  Wn^  fifa  in  the  one  case,  or  his  elegit  iu  the  other,  and  the 
slave  is  sold  or  the  lands  extended,  the  persons  holding  under  these  execu- 

*  Oil  a  bill  to  set  aside  a  fraudulent  conveyance  the  creditor's  judgment  at  law  is  prima  facie  evi- 
<1ence,  unless  impeached  for  fraud,  or  by  shewing  that  a  full  defence  was  not  made,  aud  tt«W  proof  is 
tnu:oduc«d  to  shew  that  the  debt  is  not  bona  fide  duo.    4  Ran.  232. 


CHAP.  20.]  OF  RELIEF  IN  EQUITY.  383 

tions  in  any  contest  with  the  volunteer  by  deed,  will  be  protected  even  at 
law,  since  the  deed  is  void  and  of  no  effect.  It  may,  however,  and  often 
does  happen,  that  these  frauds  are  so  concealed,  or  the  transactions  so  en- 
tangled, that  the  sheriff  does  not  venture  to  levy,  or  a  jury  sworn  on  an  ele^ 
git  cannot  be  induced  to  extend  the  land  because  of  the  existence  of  the 
deed,  and  perhaps  from  defect  of  evidence  of  the  fraud.  There  seems  to 
be  no  doubt  that  in  such  cases  where  a  third  person  may  have  possessed 
himself  of  the  debtor's  property,  and  placed  it  beyond  an  execution  at  law  (2 
John.  296,)  or  where,  from  embarrassments  thrown  in  the  way  of  the  cre- 
ditor at  law  by  fraudulent  deeds  or  transfers,  he  stands  in  need  of  the  aid 
of  a  court  of  equity  to  enforce  the  judgment  at  law  by  a  discovery  and  ac- 
count, that  aid  will  be  afforded. 

3.  Fraudulent  conveyances  of  choses  in  action  appear  to  be  considered' 
as  fully  within  the  same  principle.  It  seems,  indeed,  to  have  been  suppos- 
ed, that  as,  according  to  the  principles  of  the  common  law,  choses  in  ac- 
tion were  not  assignable,  so  neither  could  they  be  taken  in  execution  ;  and 
as  the  creditor  could  not  take  them  in  execution,  no  transfer  of  them  could 
with  any  propirety  be  said  to  hinder  or  obstruct  him  within  the  meaning  of 
the  statute  of  frauds.  Besides,  however,  that  it  may  be  very  doubtful  whether 
with  us  bonds  and  other  choses  in  action  which  are  assignable  by  law,  may 
not  be  taken  in  execution  if  they  can  be  got  at,  it  seems  to  have  been  the 
opinion  of  a  distinguished  chancellor,  that  the  statute  of  frauds  did  apply 
even  to  such  property  as  cannot  be  reached  by  legal  process,  and  that  equi- 
ty will  lend  its  aid  to  get  at  it.  4  John.  450.  See  in  favor  of  this  opinion^ 
Amb.  79,  596.  2  Atk.  600.  And  against  it,  what  is  said,  I  Vez.  jr.  146. 
2  Cox,  235.  1  Ansfe.  381.  9  Vez.  189.  10  Vez.  368.  1  Ball  &  Beatty^ 
387. 

4.  Where  a  specialty  binds  the  heirs  of  the  obligors,  and  assets  to  the- 
value  descend,  we  have  seen  that  an  action  of  debt  lies  against  the  heir,  in 
which,  if  he  acts  fairly  and  pleads  as  he  ought,  a  judgment  will  be  render- 
ed whereby  the  assets  descended  will  be  subjected  to  the  debt,  and  deliv- 
ered over  to  the  creditor  by  a  species  of  extent.  See  3  B.  C.  421,  Judge 
Tucker's  note.  If,  however,  he  pleads  falsely  or  injudiciously,  or  if  he  has 
aliened  the  assets,  he  is  personally  liable.  Thus  it  is  obvious  that  though 
the  creditor  by  bond  has  no  lien  on  the  land  in  the  obligor's  lifetime,  he  has 
in  effect  a  lien  on  the  land  while  it  remains  in  the  hands  of  the  heir  after 
the  obligor's  death.  Out  of  this  lien  and  of  the  inconvenient  and  imperfect 
remedy  of  the  common  law  execution  above  referred  to,  seems  to  have 
grown  a  practice  in  equity  of  entertaining  the  creditor  there,  and  decreeing 
a  sale  of  the  lands  instead  of  an  extent,  in  case  of  the  default  of  the  heir 
in  making  payment.  This  practice  appears  to  have  been  long  since  recog- 
nized, (see  2  Atk.  433.  1  Eq.  Ca.  149,)  and  seems  to  be  in  consonance 
with  the  principle  avowed  by  the  court,  that  while  at  law  the  creditor  sues 
the  person  in  respect  of  the  assets;  in  equity  he  pursues  the  assets  them- 
selves. 1  Vez.  430.  In  a  late  case  the  doctrines  on  the  subject  have 
been  examined,  and  the  principle  affirmed,  that  creditors  may  file  a  bill 
against  heirs  and  devisees  for  the  sale  of  the  real  estate  descended,  to  make 
good  the  deficiency  of  the  personalty  ;  but  the  real  estate  will  not  be  di- 
rected to  be  sold  until  the  amount  of  the  debts  and  the  deficiency  of  the 
personal  estate  have  been  ascertained,  to  which  end  all  the  known  creditors 
should  be  parties.  4  John.  638,  645.  See  2  John.  296.  Those  who  are 
unknown  may  afterwards  come  in,  for  which  purpose  they  should  have  no- 
tice (I  presume  through  the  gazettes)  to  come  in  and  prove  their  debts  be- 
fore a  master  or  commissioner.  See  4  John.  646.  It  seems,  moreover,  to 
have  been  considered  that  such  sale  will  not  be  directed  where  the  annual 
rent  of  the  land  is  more  tlian  sufficieat  Ijo  pay  the  interest  on  the  debt :  6 


38  1  OF  RELIEF  IN  EQUITY.  [  BOOK  ». 

Mun.  43*2:  though  the  reasons  of  the  court  not  being  given  in  this  case, 
we  are  left  to  conjecture  them.     Sed  vide,  Blow  i^s.  Maynard,  2  Leigh,  ii9. 

The  principle  which  refuses  to  subject  the  land  to  sale  until  the  personal 
estate  is  exhausted,  seems  to  correspond  with  the  doctrine  (1  Mun.  437,) 
which  refuses  to  marshal  assets  for  a  simple  contract  creditor  against  the 
heir  or  devisees,  until  he  has  established  a  deficiency  of  the  personal  es- 
tate. As  indeed  the  creditor  in  both  cases  invokes  the  aid  of  equity,  he 
must  abide  its  principles,  which  require  equity  to  be  done  to  all  parties, 
and  therefore  place  the  debt  at  once  upon  the  personalty,  which  is  the  na- 
tural fund,  and  to  which  the  heir  has  a  right  to  resort  for  his  indemnity. 

We  may  here  also  observe,  that  a  decree  for  sale  of  real  assets  descend- 
ed, will  not  be  impeded  by  reason  of  the  infancy  of  the  heir;  4  John.  619; 
but  on  the  other  hand  it  is  not  considered  the  duty  of  his  guardian  to  apply 
the  rents  and  profits  of  his  estate  to  pay  the  bond  creditor  of  the  ancestor; 
4  John.  645;  though  this  was  formerly  doubted. 

In  the  case  of  the  obligor  himself,  if  a  judgment  be  obtained  against  liini 
and  he  sues  out  an  elegit,  and  a  moiety  of  the  land  is  extended,  and  the 
rents  and  profits  will  not  keep  down  the  interest,  can  the  creditor  have  a 
decree  for  a  sale  of  the  premises?  Upon  principle  I  should  presume  so  ; 
for  he  who  has  the  entire  beneficial  interest  in  any  estate,  is  justly  regarded 
as  the  owner;  and  where  the  rents  and  profits  will  not  keep  down  the  in- 
terest, it  is  obvious  that  the  debt  must  be  continually  increasing,  and  that 
the  creditor  will  hold  perpetually,  unless  by  some  fortuitous  occurrence  the 
profits  should  be  increased.  It  is  true  the  land  may  be  undervalued  by  the 
jury,  but  if  so  that  would  indeed  be  a  motive  for  refusing  a  sale,  and  pro- 
bably it  would  not  be  decreed  if  there  was  reasonable  ground  to  believe  that 
by  any  change  of  the  state  of  things  the  debt  would  be  discharged  out  of 
the  rents  and  profits  within  a  reasonable  time.  When  there  is  no  such  pro- 
bability it  would  be  a  prejudice  both  to  the  party  and  to  the  community  to 
compel  the  creditor  to  hold  an  interest  which  he  would  not  have  the  ordinary 
incitements  to  improve.  Accordingly  we  find  in  the  case  of  a  judgment 
Hfainst  a  father  who  made  a  fraudulent  conveyance  to  his  son,  the  judgment 
creditor  who  had  a  lien  on  one-half  of  the  lands,  by  virtue  of  his  judgment, 
obtained,  after  the  father's  death,  a  decree  for  the  sale  of  the  moiety,  Lord 
Hardvvicke  being  of  opinion  that  the  creditor  was  not  bound  to  wait  for  pay- 
ment out  of  the  rents  and  profits,  but  was  entitled  to  accelerate  the  pay- 
ment by  a  sale.  2  Atk.  610.  But  a  sale  was  directed  of  the  moiety  of  the 
land,  but  no  more,*  for  his  lordship  was  of  opinion  that  he  could  not  change 
the  rights  of  the  parties.!  This  case,  then,  sufficiently  establishes,  I  think, 
the  right  of  the  judgment  creditor,  in  some  cases,  to  a  sale,  while  the  case 
from  6  Mun.  432,  seems  to  limit  that  right  to  the  case  of  rents  and  profits 
being  inadequate  to  keep  down  the  interest.  Jenkins  vs.  Sherrard,  in  the 
Winchester  chancery  court,  decided  by  Carr,  C.  accords  herewith  :  such  has 
been,  I  think,  the  usual  course.  There  seems,  indeed,  no  assignable  rea- 
son for  a  sale,  when  the  heir  is  bound,  which  does  not  apply  to  the  debtor 
liimself,  after  his  land  is  bound  by  a  judgment.  In  the  case  of  the  heir, 
liowever,  it  will  be  observed  that  the  whole  is  sold,  because  the  whole  is 
bound  :  it  is  otherwise  in  the  case  of  the  ancestor  himself,  a  moiety  of  his 
lands  only  being  bound  by  the  judgment  in  his  lifetime. 

Having  thus  ahcertained  in  what  cases  a  court  of  equity  will  lend  its  aid 
to  a  plaintiff  at  law  who  meets  with  embarrassments  in  the  way  of  his  exe- 
cution, I  proceed  to  shew  succinctly, 

*  In  1  Leigli,  145.  2  Leigh,  29.  3  Leigh,  317 ;  and  Tenant  vs.  P-itton,  March,  1K35,  io  bo  hcre- 
afier  reported,  tliis  subject  of  the  quantum  to  be  sold  lias  been  adverted  to.  It  seems  not  yet  well 
settled. 

t  Where  the  fraudulent  debtor  lias  taken  the  insolvent  oatii,  the  whole  ia  sold  of  course. 


CHAP.  20.]  OF  RELIEF  IN  EQUITY.  385 

II.  What  sort  of  relief  is  afibrded.     This  matter  has  been  in  some  de- 
gree anticipated.     We  may  add,  liowevor,  that  in  suits  broutrht  to  set  aside 
fraudulent  conveyances  vvhicii  stand  in  the  creditor's  way,  if  the  conveyan- 
ces be  of  personal  property,  an  account  and  sale  is  decreed,  and  the  fraudu- 
lent donee  is   made   personally  responsible  for  what   has  been   wasted  or 
eloigned.     For  if  there  had  been  no  alienation,  the  creditor's  fifa  would 
have  taken  the   property,  and   it   would  have  been  sold  accordingly  ;  and 
equity  places  the  creditor  in  the  same  condition  as  if  the  fraudulent  deed  had 
not  been  made.     So  if  the  debtor  dies,  the  fraudulent  donees  stand  in  the 
light  of  executors  de  son  tort,  and  are  at  once  liable  to  be  proceeded  against 
as  such.     For  the  conveyance  being  as  to  creditors  deemed  void,  the  do- 
nees are  in  possession  of  property  which  the  law  regards  as  the  property  of 
the  decedent,  and  are  therefore  looked  upon  in  the  light  above  mentioned. 
This  seems,  indeed,  a  matter  of  necessity,  for  otherwise  the  creditor  would 
be  without  remedy  :  since  he  can  never  charge  the  leal  executors  by  rea- 
son of  this  property,  of  which  they  have  never  had  possession  as  assets,  and 
which  they  cannot  recover ;  since  the  transaction  stands  good  against  their 
testator,  though  void  as  to  creditors.    See  2  Rand.  398.     In  this  case,  also,  it 
must  be  observed  that  the  creditor  might  have  brought  this  action  at  law 
against  the  fraudulent  donees  or  any  one  of  them,  as  executor  de  son  tort, 
(Edwards  vs.  Harben,  2  T.  R.)  and  had  he  done  so  he  would  have  recov- 
ered judgment  to  the  value  of  the  property  fraudulently  in  the  hands  of 
the  person  so  sued,  nor  could  he  have  been  required  either  to  join  the  oth- 
ers in  the  suit ;  or  to  proceed  against  them  for  their  proportion  ;  or  to  shew 
that  the  assets  in  the  hands  of  the  rightful  executor  were  exhausted.     2 
Rand.  399,  400.     But  where  the  creditor  comes  into  equity  it  seems  pro- 
per that  he  should  make  the  rightful  executor  or  administrator  party,  to 
account  for  the  assets  which  have  come  to  his  hands  ;  for  if  there  are  assets 
in  his  hands  to  pay  the  demand,  the  conveyances  will  not  be  void  ;  2  Ran. 
39S,  399;  and  in  such  case  the  decree  ought  to  be  against  those  assets  in 
the  first  place,  and  in  default  thereof  that  the  donee  pay  the  balance,  and 
on  refusal  that  the  property  itself  be  sold.     Such  seems  to  have  been  the 
course  in  the  analogous  case  of  Boyd  &  al.  vs.  Steinback  &  al.  5  Mun. 
305.    Again,  though  in  the  last  case  above  stated,  when  a  suit  is  brought  at 
law  against  the  fraudulent  donees  of  a  decedent,  or  any  of  them,  as  execu- 
tor de  son  tort,  the  creditor  cannot  be  required  to  proceed   against  them  for 
rateable  proportions  of  the  debt,  and  though  in  equity  if  an  attempt  to  equal- 
ize the  burden  would  produce  any  unreasonable  delay  or  detriment  to  the 
creditor,  the  court  would  not  make  it  necessary,  since  this  very  delay  is  one 
of  the  objects  of  fraudulent  conveyances  provided  against  by  the  statute, 
yet  where  the  creditor  actually  has  convened  all  parties,  if  none  of  them 
are  chargeable  with  actual  fraud,  and  the  materials  for  a  just  apportion- 
ment are  already  in  the  record,  and  it  can  be  made  without  material  delay 
or  injury  to  the  creditor,  the  apportionment  will  be  made.     But  then  there 
should  be  a  reservation  to  the  creditor  of  a  right  to  resort  for  satisfaction  to 
all  the  parties  responsible  to  him,  to  the  full  extent  of  their  liabilities,  in 
the  event  of  his  failing  from  insolvency  or  any  other  cause  to  procure  satis- 
faction from  any  of  the  parties  of  their  proportions  of  his  demand.    2  Ran. 
400.     And  the  same  principles,  I  presume,  should  prevail  where  the  donees 
are  sued  in  equity  in  the  lifetime  of  the  donor. 

But  suppose  a  judgment  creditor  sues  to  set  aside  a  fraudulent  deed  of 
lands  which  obstructs  his  proceeding  by  elegit?  What  is  the  decree  that 
will  be  rendernd  ?  It  may  be  said  that  as  the  suit  in  equity  is  brought  mere- 
ly to  get  the  fraudulent  deed  out  of  the  way,  he  ought  to  have  such  decree 
as  would  place  him  in  the  enjoyment  of  those  rights,  and  no  more,  which 
he  would  have  had  at  law  :  i.  e.  the  moiety  <jf  the  property  should  be  de- 
roL.  2—49 


386  OF  RELIEF  IN  EQUITY.  [book  3. 

livered  to  him  at  an  extended  value.  In  such  case  he  would  have  no  right, 
indeed,  to  come  upon  more  than  a  moiety ;  yet  see  1  Leigh,  145.  2  Leigh, 
29.  2  Atk.  477,  608  ;  but  in  Stileman  vs.  Ashdown,  which  is  the  case  here 
referred  to  in  Atkins,  we  have  an  express  authority  that  the  creditor  shall 
not  be  compelled  to  wait  for  the  slow  payment  of  his  debt  by  rents  and  pro- 
fits, but  may  have  a  sale  of  the  moiety.  In  that  case  it  is  true  the  fraudu- 
lent donee  was  also  the  heir :  yet  1  do  not  perceive  that  this  would  have 
materially  affected  the  question. 

I  am  not  aware  of  any  express  adjudication  upon  the  point ;  though  I 
am  strongly  inclined  to  think  that  the  uniform  course  has  been  to  decree 
that  the  sale  be  made,  unless  the  sum  decreed  be  paid  by  the  debtor  or  the 
fraudulent  donee.  See  Eppes  vs.  Randolph,  2  Call.  Nor  have  I  ever 
known  a  previous  inquiry  instituted  to  ascertain  whether  the  rents  and  pro- 
fits would  keep  down  the  interest.  The  court  seems  rather  to  have  looked 
upon  the  fraudulent  donees  as  trustees  for  the  creditors,  and  to  have  sub- 
jected the  estate  to  sale  accordingly  in  default  of  payment  of  the  amount 
due  ;  a  practice  to  which  I  do  not  perceive  any  well  grounded  objection. 

III.  I  proceed  next  to  observe  that  no  creditor  can  entitle  himself  to  pro- 
ceed in  equity  to  set  aside  a  fraudulent  conveyance  to  his  prejudice,  nor  in 
any  way  to  prevent  or  interfere  with  the  debtor's  disposition  of  his  property, 
(6  Ran.  188,)  until  he  has  first  acquired  a  specific  right  to  charge  the  pro- 
perty sought  to  be  subjected.  Thus  if  the  property  consist  of  goods  and 
chattels,  he  should  show  that  he  has  sued  out  an  execution  giving  him  a 
legal  preference  or  lien  on  the  goods  and  chattels,  and  has  pursued  it  to 
every  available  extent  at  law,  but  without  eflfect:  2  John.  144,  290.  4 
John.  671,  682,  687.  2  Rand.  384.  2  Leigh,  84:  Thus  if  he  has  sued 
out  a  fifa  which  has  been  delivered  to  the  sheriff,  or  a  casa  which  has  been 
levied  on  the  debtor's  body,  or  (the  debtor  being  dead)  if  he  can  shew  that 
there  are  no  assets  out  of  which  he  can  receive  payment  except  what  are 
in  possession  of  the  fraudulent  donees,  he  may  resort  to  equity.  But  until 
he  has  taken  steps  to  acquire  a  lien  by  execution,  he  has  no  right  even  to 
restrain  the  alienation  of  his  property  by  the  debtor  ;  2  John.  144.  2  Rand. 
394,  395  ;  such  alienation  is  valid,  provided  it  be  bona  fide,  or  for  the  pur- 
pose of  securing  other  just  creditors.  He  has  therefore  no  pretension  to  a 
resort  to  equity  to  subject  the  property.  But  when  the  fifa  is  delivered  to 
the  sheriff,  or  the  casa  levied,  the  goods  of  the  donor  are  bound  ;  and  if 
the  conveyance  to  the  donee  is  fraudulent,  it  is  void,  and  the  goods  are 
therefore  still  considered  as  the  goods  of  the  donor,  and  liable  to  be  taken 
by  the  execution  if  they  can  be  got  at ;  (2  Rand.  395,  396;)  and  if  they 
cannot,  then  the  party  being  obstructed  in  the  enforcement  of  his  specific 
rights,  may  well  call  in  the  aid  of  an  equitable  tribunal. 

In  like  manner  with  respect  to  land  ;  if  the  creditor  has  obtained  no 
judgment,  he  has  no  specific  claim  to  render  the  lands  liable,  and  though 
the  debtor  has  conveyed  them  fraudulently,  yet  it  does  not  follow  that  this 
creditor  is  entitled  to  make  his  debt  out  of  them.  Before  he  gets  his  judg- 
ment another  creditor  may  have  obtained  one,  and  thus  have  a  preferable 
right,  or  the  lands  may  be  bona  fide  sold  to  a  third  person  without  notice. 
He  cannot,  therefore,  go  into  equity  for  the  purpose  of  setting  aside  the 
conveyance  and  subjecting  the  lands  to  the  payment,  for  he  has  not,  and 
non  constat  that  he  ever  will  have,  any  right  to  subject  them.  See  the  au- 
thorities above  cited. 

When,  however,  the  debtor  is  dead,  and  the  lands  descend  to  the  heir, 
and  the  creditor's  demand  binds  the  heir,  there  I  conceive  he  has  a  lien 
which  directly  affects  the  lands  in  the  hands  of  the  heir,  and  he  may  there- 
fore proceed  in  equity  even  before  he  has  sue.d  at  law  and  obtained  a  judg- 
ment. 


CHAP.  21.  J  OF  EQUITY.  887 

I  shall  conclude  this  subject  of  executions  with  a  notice  of  that  species 
which  issues  against  the  heir  upon  a  judgment  obtained  against  him  upon 
the  bond  of  his  ancestor.  In  certain  cases  we  have  seen  liie  heir  renders 
himself  liable  to  a  judgment  as  for  his  own  proper  debt;  and  there  the  or- 
dinary executions  apply.  As  where  he  has  aliened  the  land,  or  pleads  a 
false  plea,  &c.  But  where  he  pleads  truly  and  confesses  the  assets  de- 
scended, the  judgment  is  only  that  the  plaintiff  have  execution  of  the  lands 
descended.  On  such  a  judgment  a  peculiar  execution  issues  directing  the 
sheriff  to  take  an  inquisition  ascertaining  by  a  jury  the  yearly  value  of  the 
lands,  and  further  directing  him  to  deliver  them  at  such  ascertained  value 
to  the  plaintiff  until  he  is  paid  his  debt  out  of  the  profits.  The  whole  land 
is  extended  in  this  case,  though  if  the  judgment  had  been  rendered  in  the 
ancestor's  lifetime,  and  revived  against  the  heir,  only  half  could  have  been 
taken  on  the  revived  judgment  by  elegit.  See  Tucker's  Black,  vol.  3,  421, 
in  no.     Lilly's  Entries,  18i,  381.     Plow.  440. 


CHAPTER  XXL 

OF  EQUITY. 

'In  an  early  stage  of  these  lectures  I  found  it  necessary  for  the  conve- 
nience of  the  student  to  present  him  with  a  cursory  view  of  the  origin  and 
nature  of  courts  of  equity.  I  shall  not,  therefore,  recur  to  that  subject ; 
but  referring  to  what  has  been  before  remarked,  I  shall  proceed  to  a  short 
disquisition  upon  equitable  jurisprudence.  In  this  I  shall  endeavor  to  be 
more  particular  than  Mr.  Blackstone,  though  I  shall,  as  usual,  avail  myself 
of  his  lucid  and  judicious  views,  whenever  they  may  be  applicable  to  the 
state  of  equitable  jurisprudence  which  exists  in  the  commonwealth  of  Vir- 
ginia. My  limits  will  not  permit  me,  however,  to  go  into  the  subject  very 
minutely  ;  so  that  the  student  will,  after  all,  find  it  necessary  to  devote  himself 
diligently  to  the  perusal  of  the  valuable  essays  to  which  I  am  myself  in 
some  degree  indebted  for  the  matter  of  this  imperfect  sketch. 

In  the  execution  of  this  task,  I  propose  to  consider  first,  some  of  the 
most  important  grounds  of  equitable  jurisdiction,  and  the  principles  of  equi- 
ty in  relation  to  them  :  and  then  I  shall  offer  to  the  student  a  succinct  ac- 
count of  the  mode  of  proceeding  in  our  courts  of  chancery,  or  in  other 
words,  of  the  method  of  prosecuting  a  suit  in  equity. 

In  reviewing  the  subject  of  equitable  jurisdiction,  I  cannot  prevail  upon 
myself  to  discard  what  the  learned  commentator  has  said  upon  the  subject, 
deficient  as  it  must  be  admitted  to  be,  and  as  it  necessarily  must  have  been, 
according  to  the  plan  of  his  work.  I  shall,  therefore,  present  what  he  says 
upon  the  subject  of  what  may  properly  be  considered  as  the  equitable  juris- 
diction of  the  court  of  chancery,  as  contra-distinguished  from  certain  com- 
mon law  and  statutory  jurisciction  which  that  court  in  England  possesses. 
In  treating  this  matter,  the  author  has  commenced  with  vigorously  contro- 
verting certain  errors  upon  the  subject,  instead  of  pursuing  his  more  usual 
course  of  regular  analysis.  He  tells  us  that  "  the  very  terms  of  a  court  of 
equity,  and  a  court  of  law,  as  contrasted  to  each  other,  are  apt  to  confound 
and  mislead  us  :  as  if  the  one  judged  without  equity,  and  the  other  was  not 
bound  by  any  law.  Whereas  every  definition  or  illustration  to  be  met  with, 
which  now  draws  a  line  between  the  two  jurisdictiOTs,  by  setting  law  and 
equity  in  opposition  to  each  other,  will  be  found  either  totally  erroneous,  or 
erroneous  to  a  certain  degree." 

1.  "  Thus,  in  the  first  place,  it  is  said,  that  it  is  the  business  of  a  court  of 


388  OF  EQUITY.  [  BOOK  3. 

equity  in  England  to  abate  the  rigor  of  the  common  law.  But  no  such 
power  is  contended  for.  Hard  was  the  case  of  bond-creditors,  whose  debtor 
devised  away  his  real  estate;  rigorous  and  unjust  the  rule,  which  put  the 
devisee  in  a  better  condition  than  the  heir;  yet  a  court  of  equity  had  no 
power  to  interpose.  Hard  is  the  common  law  still  subsisting,  that  land  de- 
vised, or  descending  to  the  heir,  shall  not  be  liable  to  simple  contract  debts 
of  the  ancestor  or  devisor,  although  the  money  was  laid  out  in  purchasing 
the  very  land  ;  and  that  the  father  shall  never  immediately  succeed  as  heir 
to  the  real  estate  of  the  son:  but  a  court  of  equity  can  give  no  relief; 
though  in  both  these  instances  the  artificial  reason  of  the  law,  arising  from 
feodal  principles,  has  long  ago  entirely  ceased.  In  all  such  cases  of  posi- 
tive law,  the  courts  of  equity,  as  well  as  the  courts  of  law,  must  say  with 
Ulpian,  "  hoc  quidetn perquam  durum  est,  sed  ita  lex  scripla  est.",' 

2.  "It  is  said,  that  a  court  of  equity  determines  according  to  the  spirit 
of  the  rule,  and  not  according  to  the  strictness  of  the  letter.  But  so,  also, 
does  a  court  of  law.  Both,  for  instance,  are  equally  bound,  and  equally 
profess,  to  interpret  statutes  according  to  the  true  intent  of  the  legislature. 
In  general  law  all  cases  cannot  be  foreseen  ;  or,  if  foreseen,  cannot  be  ex- 
pressed :  some  will  arise  that  will  fall  within  the  meaning,  though  not  with- 
in the  words,  of  the  legislator;  and  others,  which  may  fall  within  the  letter, 
may  be  contrary  to  his  nieaning,  though  not  expressly  exce])ted.  These  ca- 
ses thus  out  of  the  letter,  are  often  said  to  be  within  the  equity,  of  an  act 
of  parliament ;  and  so  cases  within  the  letter  are  frequently  out  of  the 
equity.  Here  by  equity  we  mean  nothing  but  the  sound  interpretation  of 
the  law  ;  though  the  words  of  the  law  itself  may  be  too  general,  too  spe- 
cial, or  otherwise  inaccurate  or  defective.  These,  then,  are  the  cases  which, 
as  Grotius  says,  "lex  non  exacte  definit,  sed  arhitrio  bout  viri  permit  tit ;"  in 
order  to  find  out  the  true  sense  and  meaning  of  the  lawgiver,  from  every  other 
topic  of  construction.  But  there  is  not  a  single  rule  of  interpreting  laws, 
whether  equitably  or  strictly,  that  is  not  equally  used  by  the  judges  in  the 
courts  both  of  law  and  equity  :  the  construction  must  in  both  be  the  same : 
or,  if  they  differ,  it  is  only  as  one  court  of  law  may  also  happen  to  differ 
from  another.  Each  endeavors  to  fix  and  adopt  the  true  sense  of  the  law 
in  question  ;  neither  can  enlarge,  diminish,  or  alter,  that  sense  in  a  single 
tittle. 

3.  "Again,  it  hath  been  said,  that/z-awrZ,  accident,  and  trust,  are  the  pro- 
per and  peculiar  objects  of  a  court  of  equity.  But  many  kinds  o^  fraud 
are  equally  cognizable,  and  equally  adverted  to  in  a  court  of  law  :  and  some 
frauds  are  eogniz;ible  only  there  :  as  fraud  in  obtaining  a  devise  of  lands, 
which  is  always  sent  out  of  the  equity  courts,  to  be  there  determined. 
Many  accidents  are  also  supplied  in  a  court  of  law;  as,  loss  of  deeds,  mis- 
takes in  receipts  or  accounts,  wrong  payments,  deaths,  which  make  it  im- 
possible to  perform  a  condition  literally,  and  a  multitude  of  other  contin- 
gencies :  and  many  cannot  be  relieved  even  in  a  court  of  equity;  as,  if  by 
accident  a  recovery  is  ill  suffered,  a  devise  ill  executed,  a  contingent  re- 
mainder destroyed,  or  a  power  of  leasing  omitted  in  a  family  settlement. 
A  technical  trust,  indeed,  created  by  the  limitation  of  a  second  use,  was 
forced  into  the  courts  of  equity  in  the  manner  formerly  mentioned  ;  and 
this  species  of  trust,  extended  by  inference  and  construction,  has  ever  since 
remained  as  a  kind  of  peculium  in  those  courts.  But  there  are  other  trusts, 
which  are  cognizabl^in  a  court  of  law  :  as  deposites,  and  all  manner  of 
bailments  ;  and  especially  that  implied  contract,  so  highly  beneficial  and 
useful,  of  having  undertaken  to  account  for  money  received  to  another's 
use,  which  is  the  ground  of  an  action  on  the  case  almost  as  universally  re- 
medial as  u  l)ill  in  equity. 


CHAP.  21.]  OF  EQUITY.  389 

4.  "Once  more ;  it  has  been  said  that  a  court  of  equity  is  not  bound  by 
rules  or  precedents,  but  nets  from  the  opinion  of  the  judge,*  founded  on 
the  circumstance  of  every  particular  case.  Whereas  the  system  of  our 
courts  of  equity  is  a  labored  connected  system,  governed  by  established 
rules,  and  bound  down  by  precedents,  from  which  they  do  not  depart,  al- 
though the  reason  of  some  of  them  may,  perhaps,  be  liable  to  objection. 
Thus,  the  refusing  a  wife  her  dower  in  a  trust-estate,  yet  allowing  tlie  hus- 
band his  courtesy  :  the  holding  the  penalty  of  a  bond  to  be  merely  a  secu- 
rity for  the  debt  and  interest,  yet  considering  it  sometimes  as  the  debt  it- 
self, so  that  the  interest  shall  not  exceed  that  penalty  ;  the  distinguishing 
between  a  mortgage  at  jive  per  cent,  with  a  clause  of  a  reduction  to  four, 
if  the  interest  be  regularly  paid,  and  a  mortgage  at  four  per  cent,  with  a 
clause  of  enlargement  to  Jive,  if  the  payment  of  the  interobt  b";  v.cfcrred  ; 
so  that  the  former  shall  be  deemed  a  conscientious,  the  latter  an  unrighte- 
ous bargain  :  all  these,  and  other  cases  that  might  be  instanced,  are  plainly 
rules  of  positive  law  ;  supported  only  by  that  reverence  that  is  shewn,  and 
generally  very  properly  shewn,  to  a  series  of  former  determinations  ;  that 
the  rule  of  property  may  be  uniform  and  steady.  Nay,  sometimes  a  pre- 
cedent is  so  strictly  followed,  that  a  particular  judgment,  founded  upon 
special  circumstances,  give  rise  to  a  general  rule. 

"  In  short,  if  a  court  of  equity  in  England  did  really  act,  as  many  inge- 
nious writers  have  supposed  it  (from  theory)  to  do,  it  would  rise  above  all 
law,  either  common  or  statute,  and  be  a  most  arbitrary  legislator  in  every 
particular  case.  No  wonder  they  are  so  often  mistaken.  Grotius,  or  Puf- 
fendorf,  or  any  other  of  the  great  masters  of  jurisprudence,  would  have 
been  as  little  able  to  discover,  by  their  own  light,  the  system  of  a  court  of 
equity  in  England,  as  the  system  of  a  court  of  law  :  especially,  as  the  no- 
tions before  mentioned  of  the  character,  power,  and  practice  of  a  court  of 
equity  were  formerly  adopted  and  propagated  (though  not  with  approba- 
tion of  the  thing)  by  our  principal  antiquaries  and  lawyers  ;  Spelman,  Coke, 
Lambard,  and  Selden,  and  even  the  great  Bacon  himself.  But  this  was  in 
the  infancy  of  our  courts  of  equity,  before  their  jurisdiction  was  settled, 
and  when  the  chancellors  themselves,  partly  from  their  ignorance  of  law, 
(baing  frequently  bishops  or  statesmen,)  partly  from  ambition  or  lust  of 
power,  (encouraged  by  the  arbitrary  principles  of  the  age  they  lived  in,)  but 
principally  from  the  narrow  and  unjust  decisions  of  the  courts  of  law,  had 
arrogated  to  themselves  such  unlimited  authority,  as  hath  totally  been  dis- 
claimed by  their  successors  for  now  above  a  century  past.  The  decrees  of 
a  court  of  equity  were  then  rather  in  the  nature  of  awards,  formed  on  the 
sudden  pro  re  nata,  with  more  probity  of  intention  than  knowledge  of  the 
subject;  founded  on  no  settled  principles,  as  being  never  designed,  and 
therefore  never  used  for  precedents.  But  the  systems  of  jurisprudence,  in 
our  courts  both  of  law  and  equity,  are  now  equally  artificial  systems,  found- 
ed on  the  same  principles  of  justice  and  positive  law ;  but  varied  by  differ- 
ent usages  in  the  forms  and  mode  of  their  proceedings  :  the  one  being  origi- 
nally derived  (though  much  reformed  and  improved)  from  the  feodaJ  cus- 
toms, as  they  prevailed  in  different  ages  in  the  Saxon  and  Norman  judica- 
tures ;  the  other  (but  with  equal  improvements)  from  the  imperial  and  pon- 
tifical formularies,  introduced  by  their  clerical  chancellors. 

"  The  suggestion  indeed  of  every  bill,  to  give  jurisdiction  to  tlie  courts  of 
equity,  (copied  from  those  early  times,)  is  that  the  complainant  hath  no 

*  This  is  stated  i)y  IMr.  Selden  (Table  Talk,  (if.  Equity,)  with  more  pleasantry  than  truth.  "  For 
laitj,\vp  have  a  measure,  and  know  what  to  trust  to;  equity  is  according  to  the  conscience  of  hitn 
that  is  chancellor ;  and,  as  that  is  larger  and  narrower,  so  is  equity.  'Tis  all  one,  as  if  they  should 
make  the  standard  for  the  measure  a  chancellor's  foot.  What  an  unccriain  measure  would  this  be  ! 
One  chancellor  has  a  long  foot,  another  a  short  foot,  a  third  an  indifferent  foot.  It  is  the  K«me  ihinj; 
>viilva  chancellor's  conscience." 


.390  OF  EQUITY.  [  BOOK  3. 

remedy  at  the  common  law.  But  he  who  should  from  thence  conclude, 
that  no  case  is  judged  of  in  equity  where  there  might  have  been  relief  at 
law,  and  at  the  same  time  casts  his  eye  on  the  extent  and  variety  of  the  ca- 
ses in  our  equity  reports,  must  think  the  law  a  dead  letter  indeed.  The 
rules  of  property,  rules  of  evidence,  and  rules  of  interpretation  in  both 
courts  are,  or  should  be,  exactly  the  same  :  both  ought  to  adopt  the  best,  or 
must  cease  to  be  courts  of  justice.  Formerly  some  causes,  which  now  no 
longer  exist,  might  occasion  a  different  rule  to  be  followed  in  one  court, 
from  what  was  afterwards  adopted  in  the  other,  as  founded  in  the  nature 
and  reason  of  the  thing:  but  the  instant  those  causes  ceased,  the  measure 
of  substantial  justice  ought  to  have  been  the  same  in  both.  Thus  the  penal- 
ty of  a  bond,  originally  contrived  to  evade  the  absurdity  of  those  monkish 
constitutions  which  prohibited  taking  interest  for  money,  was  therefore  very 
pardonably  considered  as  the  real  debt  in  the  courts  of  law,  when  the  debtor 
neglected  to  perform  his  agreement  for  the  return  of  the  loan  with  interest: 
for  the  judges  could  not,  as  the  law  then  stood,  give  judgment,  that  the  in- 
terest should  be  specifically  paid.  But  when  afterwards  the  taking  of  inter- 
est became  legal,  as  the  necessary  companion  of  commerce,  nay  after  the 
statute  of  37  Hen.  VIII.  c.  9,  had  declared  the  debt  of  loan  itself  to  be 
'  the  just  and  true  intent'  for  which  the  obligation  was  given,  their  narrow- 
minded  successors  still  adhered  wilfully  and  technically  to  the  letter  of  the 
ancient  precedents,  and  refused  to  consider  the  payment  of  principal,  in- 
terest, and  costs,  as  a  full  satisfaction  of  the  bond.  At  the  same  time  more 
liberal  men  who  sate  in  the  courts  of  equity,  construed  the  instrument  ac- 
cording to  its  'just  and  true  intent,'  as  merely  a  security  for  the  loan  :  in 
which  light  it  was  certainly  understood  by  the  parties,  at  least  after  these 
determinations  ;  and  therefore  this  construction  should  have  been  universal- 
ly received.  So  in  mortgages,  being  only  a  landed  as  the  other  is  a  per- 
sonal security  for  the  money  lent,  the  payment  of  principal,  interest,  and 
costs  ought  at  any  time,  before  judgment  executed,  to  have  saved  the  for- 
feiture in  a  court  of  law,  as  well  as  in  a  court  of  equity. 

"  Again  ;  neither  a  court  of  equity  nor  of  law  can  vary  men's  wills  or 
agreements,  or  (in  other  words)  make  wills  or  agreements  for  them.  Both 
are  to  understand  them  truly,  and  therefore  both  of  them  uniformly.  One 
court  ought  not  to  extend,  nor  the  other  abridge,  a  lawful  provision  delibe- 
rately settled  by  the  parties,  contrary  to  its  just  intent.  A  court  of  equity, 
no  more  than  a  court  of  law,  can  relieve  against  a  penalty  in  the  nature  of 
stated  damages  ;  as  a  rent  of  ^o  an  acre  for  ploughing  up  ancient  meadow  : 
nor  against  a  lapse  of  time,  where  the  time  is  material  to  the  contract ;  as 
in  covenants  for  renewal  of  leases.  Both  courts  will  equitably  construe, 
but  neither  pretends  to  control  or  change,  a  lawful  stipulation  or  engage- 
ment. 

"  The  rules  of  decision  are  in  both  courts  equally  apposite  to  the  subjects 
of  which  they  take  cognizance.  Where  the  subject-matter  is  such  as  re- 
quires to  be  determined  secundum  aequum  et  bonum,  as  generally  upon  ac- 
tions on  the  case,  the  judgments  of  the  courts  of  law  are  guided  by  the 
most  liberal  equity.  In  matters  of  positive  right,  both  courts  must  submit 
to  and  follow  those  ancient  and  invariable  maxims  '  quai  relicta  sunt  et  tra- 
dita.'  Both  follow  the  law  of  nations,  and  collect  it  from  history  and  the 
most  approved  authors  of  all  countries,  where  the  question  is  the  object  of 
that  law  ;  as  in  the  case  of  the  privileges  of  ambassadors,  hostages,  or  ran- 
som-bills. In  mercantile  transactions  they  follow  the  marine-law,  and  ar- 
gue from  the  usages  and  authorities  received  in  all  maritime  countries. 
Where  they  exercise  a  concurrent  jurisdiction,  they  both  follow  the  law  of 
the  proper  forum:  in  matters  originally  of  ecclesiastical  cognizance,  they 
both  equally  adopt  the  canon  or  imperial  law,  according  to  the  nature  of 


CHAP.  21.]  OF  EQUITY.  391 

the  subject ;  and,  if  a  question  came  before  either,  which  was  properly  the 
object  of  a  foreign  municipal  law,  they  woulii  both  receive  information  of 
what  is  the  rule  of  the  country,  and  would  both  decide  accordingly. 

"  Such  then  being  the  parity  of  law  and  reason  which  governs  both  spe- 
cies of  courts,  wherein  (it  may  be  asked)  does  their  essential  difference 
consist?  It  principally  consists  in  the  different  modes  of  administering  jus- 
tice in  each  ;  in  the  mode  of  proof,  the  mode  of  trial,  and  the  mode  of  re- 
lief. Upon  these,  and  upon  two  other  accidental  grounds  of  jurisdiction, 
which  were  formerly  driven  into  those  courts  by  narrow  decisions  of  the 
courts  of  law,  viz.  the  true  construction  of  securities  for  money  lent,  and 
the  form  and  effect  of  a  trust  or  second  use  ;  upon  these  main  pillars  hath 
been  gradually  erected  that  structure  of  jurisprudence,  which  prevails  in  our 
courts  of  equity,  and  is  inwardly  bottomed  upon  the  same  substantial  foun- 
dations as  the  legal  system  which  hath  hitherto  been  delineated  in  these 
commentaries  ;  however  different  they  may  appear  in  their  outward  form, 
from  the  different  taste  of  their  architects. 

1.  "  And,  first,  as  to  the  mode  of  proof.  When  facts,  or  their  leading  cir- 
cumstances, rest  only  in  the  knowledge  of  the  party,  a  court  of  equity  ap- 
plies itself  to  his  conscience,  and  purges  him  upon  oath  with  regard  to  the 
truth  of  the  transaction  ;  and,  that  being  once  discovered,  the  judgment  is 
the  same  in  equity  as  it  would  have  been  at  law.  But,  for  want  of  this  dis- 
covery at  law,  the  courts  of  equity  have  acquired  a  concurrent  jurisdiction 
with  every  other  court  in  all  matters  of  account.  As  incident  to  accounts, 
they  take  a  concurrent  cognizance  of  the  administration  of  personal  assets, 
consequently  of  debts,  legacies,  the  distribution  of  the  residue,  and  the 
conduct  of  executors  and  administrators.  As  incident  to  accounts,  they 
also  take  the  concurrent  jurisdiction  of  tithes,  and  all  questions  relating 
thereto  ;  of  all  dealings  in  partnership,  and  many  other  mercantile  transac- 
tions; and  so  of  bailiffs,  receivers,  factors,  and  agents.  It  would  be  end- 
less to  point  out  all  the  several  avenues  in  human  affairs,  and  in  this  com- 
mercial age,  which  lead  to  or  end  in  accounts. 

"  From  the  same  fruitful  source,  the  compulsive  discovery  upon  oath,  the 
courts  of  equity  have  acquired  a  jurisdiction  over  almost  all  matters  of 
fraud  ;  all  matters  in  the  private  knowledge  of  the  party,  which  though 
concealed,  are  binding  in  conscience  ;  and  all  judgments  at  law,  obtained 
through  such  fraud  or  concealment.  And  this,  not  by  impeaching  or  re- 
versing the  judgment  itself,  but  by  prohibiting  the  plaintiff  from  taking  any 
advantage  of  the  judgment,  obtained  by  suppressing  the  truth  ;  and  which, 
had  the  same  facts  appeared  on  the  trial  as  now  are  discovered,  he  would 
never  have  attained  at  all.* 

2.  "  As  to  the  mode  of  trial.  This  is  by  interrogatories  administered  to 
the  witnesses,  upon  which  their  depositions  are  taken  in  writing,  wherever 
they  happen  to  reside.  If,  therefore,  the  cause  arises  in  a  foreign  country, 
and  the  witnesses  reside  upon  the  spot  ;  if,  in  causes  arising  in  England, 
the  witnesses  are  abroad,  or  shortly  to  leave  the  kingdom  ;  or  if  witnesses 
residing  at  home  are  aged  or  infirm  ;  any  of  these  cases  lay  a  ground  for 
a  court  of  equity  to  grant  a  commission  to  examine  them,  and  (in  conse- 
quence) to  exercise  the  same  jurisdiction,  which  might  have  been  exercised 
at  law,  if  the  witnesses  could  probably  attend. 

*One  material  difinrpiice  between  a  court  of  equity  and  a  court  of  law  as  to  the  mode  of  proof,  is 
thus  described  by  lord  ciiancelior  Eldon  :  "  A  defendant  in  a  court  of  equity  has  llie  protection  aris- 
ing from  his  own  conscience  in  a  degree  in  vviiich  the  law  does  not  affect  to  give  him  proleciion.  If 
he  positively,  piainl}  ,  and  preciselj'  denies  the  assertion,  and  one  witness  only  proves  it  as  positively, 
clearly,  and  precisely,  as  it  is  denied',  and  there  is  no  circumstance  altaciiing  credit  to  the  assertion, 
overbalancing  the  credit  due  to  the  denial,  as  a  posiiive  denial,  a  couit  of  equiiy  will  not  act  upon 
the  testimony  of  that  witness.  Not  so  at  law.  'J'here  the  defendant  is  not  heard.  One  witnefs 
proves  the  case;  and,  however  strongly  the  defendant  may  be  iuciiueJ  to  deny  it  upon  oath,  tlieie 
must  be  a  recovery  against  him."    6  Ves.  Jun.  184. 


892  OF  EQUITY.  [book  3. 

3.  "  With  respect  to  the  mode  of  relief.  The  want  of  a  more  specific 
remedy,  than  can  be  obtained  in  the  courts  of  law,  gives  a  concurrent  juris- 
diction to  a  court  of  equity  in  a  great  variety  of  cases.  To  instance  in  exe- 
cutory agreements,  A  court  of  equity  will  compel  them  to  be  carried  in- 
to strict  execution,  unless  where  it  is  improper  or  impossible,  instead  of 
giving  damages  for  their  non-performance.  And  hence  a  fiction  is  esta- 
blished, that  what  ought  to  be  done  shall  be  considered  as  being  actually 
done,  and  shall  relate  back  to  the  time  when  it  ought  to  have  been  done 
originally  :  and  this  fiction  is  so  closely  pursued  through  all  its  consequen- 
ces, that  it  necessarily  branches  out  into  many  rules  of  jurisprudence,  which 
form  a  certain  regular  system.  So  of  waste,  and  other  similar  injuries,  a 
court  of  equity  takes  a  concurrent  cognizance,  in  order  to  prevent  them  by 
injunction.  Over  questions  that  may  be  tried  at  law,  in  a  great  multiplicity 
of  actions,  a  court  of  equity  assumes  a  jurisdiction,  to  prevent  the  expense 
and  vexation  of  endless  litigations  and  suits.  In  various  kinds  of  frauds  it 
assumes  a  concurrent  jurisdiction,  not  only  for  the  sake  of  a  discovery,  but 
of  a  more  extensive  and  specific  relief:  as  by  setting  aside  fraudulent  deeds, 
decreeing  re-conveyances,  or  directing  an  absolute  conveyance  merely  to 
stand  as  a  security.  And  thus,  lastly,  for  the  sake  of  a  more  beneficial 
and  complete  relief  by  decreeing  a  sale  of  lands,  a  court  of  equity  holds 
plea  of  all  debts,  incumbrances,  and  charges,  that  may  affect  it  or  issue 
thereout. 

4.  "  The  true  construction  of  securities  for  money  lent  is  another  foun- 
tain of  jurisdiction  in  courts  of  equity.  When  they  held  the  penalty  of  a 
bond  to  be  the  form,  and  that  in  substance  it  was  only  a  pledge  to  secure 
the  repayment  of  the  sum  bona  fide  advanced,  with  a  proper  compensation 
for  the  use,  they  laid  the  foundation  of  a  regular  series  of  determinations, 
which  have  settled  the  doctrine  of  personal  pledges  or  securities,  and  are 
equally  applicable  to  mortgages  of  real  properly.  The  mortgagor  continues 
owner  of  the  land,  the  mortgagee  of  the  money  lent  upon  it ;  but  this 
ownership  is  mutually  transferred,  and  the  mortgagor  is  barred  from  redemp* 
tion,  if,  when  called  upon  by  the  mortgagee,  he  does  not  redeem  wiihin  a 
time  limited  by  the  court ;  or  he  may,  when  out  of  possession,  be  barred 
by  length  of  time,  by  analogy  to  the  statute  of  limitations. 

5.  "The  form  of  a  trust,  or  second  use,  gives  the  courts  of  equity  an  ex- 
clusive jurisdiction  as  to  the  subject-matter  of  all  settlements  and  devises  in 
that  form,  and  of  all  the  long  terms  created  in  the  present  complicated 
mode  of  conveyancing.  This  is  a  very  ample  source  of  jurisdiction  ;  but 
the  trust  is  governed  by  very  nearly  the  same  rules,  as  would  govern  the 
estate  in  a  court  of  law,  if  no  trustee  was  interposed  :  and  by  a  regular  po- 
sitive system  established  in  the  courts  of  equity,  the  doctrine  of  trusts  is 
now  reduced  to  as  great  a  certainty  as  that  of  legal  estates  in  the  courts  of 
common  law. 

"These  are  the  principal  (for  I  omit  the  minuter)  grounds  of  the  juris- 
diction at  present  exercised  in  our  courts  of  equity  :  which  differ,  we  see, 
very  considerably  from  the  notions  entertained  by  strangers,  and  even  by 
those  courts  themselves  before  they  arrived  at  maturity  ;  as  appears  from 
the  principles  laid  down,  and  the  jealousies  entertained  of  their  abuse,  by 
our  early  juridical  writers  cited  in  a  former  page  ;  and  which  have  been  im- 
plicitly received  and  handed  down  by  subsequent  compilers,  without  at- 
tending to  those  gradual  accessions  and  derelictions,  by  which  in  the  course 
of  a  century  this  mighty  river  hath  imperceptibly  shifted  its  channel.  Lam- 
bard  in  particular,  in  the  reign  of  Queen  Elizabeth,  lays  it  down,  that 
'equity  should  not  be  appealed  unto,  but  only  in  rare  and  extraordinary 
matters:  and  that  a  good  chancellor  will  not  arrogate  authority  in  every 
complaint  that  shall  be  brought  before  him  upon  whatsoever  suggestion  : 


CHAP.  21.]  OF  EQUITY.  398 

and  thereby  both  overthrow  the  authority  of  tlic  courts  of  common  law,  and 
bring  upon  men  such  a  confusion  and  un«ertaitity,  as  hardly  any  man  should 
know  how  or  how  long  to  hold  his  own  assured  to  him.'  And  certainly,  if 
a  court  of  equity  were  still  at  sea,  and  floated  upon  the  occasional  opinion 
which  the  judge  who  happened  to  preside  might  entertain  of  conscience  in 
every  particular  case,  the  inconvenience  that  would  arise  from  this  uncer- 
tainty would  be  a  worse  evil  than  any  hardship  that  could  follow  from  rules 
toe  strict  and  inflexible.  Its  powers  would  have  become  too  arbitrary  to 
have  been  endured  in  a  country  like  this,  which  boasts  of  being  governed 
in  all  respects  by  law  and  not  by  will.  But  since  the  time  when  Lambard 
wrote,  a  set  of  great  and  eminent  lawyers,  who  have  su<icessiveiy  held  the 
great  seaJ,  have  by  degrees  erected  the  system  of  relief  administered  by  a 
court  of  equity  into  a  regular  science,  which  cannot  be  attained  without 
study  and  experience,  any  more  than  the  science  of  law :  but  from  which, 
when  understood,  it  may  be  known  what  remedy  a  suitor  is  entitled  to  ex- 
pect, and  by  what  mode  of  suit,  as  readily  and  with  as  much  precision  in 
a  court  of  equity  as  in  a  court  of  law. 

"  It  were  much  to  be  wished,  for  the  sake  of  certairrty,  peace,  and  justice", 
that  each  court  would,  as  far  as  possible,  follow  the  other,  in  the  best  and 
jnost  effectual  rule  for  attaining  those  desirable  ends.  It  is  a  maxim  that 
equity  follows  the  law;  and  in  former  days  the  law  had  not  scrupled  to  fol- 
low even  that  equity,  which  was  laid  down  by  the  clerical  chancellors. 
Every  one  who  rs  conversant  rn  our  ancient  books,  knows  that  many  valu- 
able improvements  in  the  state  of  our  tenures  (especially  in  leaseholds  and 
copyholds)  and  the  forms  of  administering  justice,  have  arisen  from  this 
single  reason,  that  the  same  thing  was  constantly  effected  by  means  of  a 
subpcRna  in  the  chancery.  And  sure  there  cannot  be  a  greater  solecism, 
than  that  in  two  sovereign  independent  courts  established  in  the  same  coun- 
try, exercising  concurrent  jurisdiction,  and  over  the  same  subject-matter, 
there  should  exist  in  a  single  instance  two  different  rules  of  property,  clash- 
ing with  or  contradicting  each  other." 

So  much  for  Mr.  Blackstone's  account  of  the  jurisdiction  of  a  court  of 
equity.  I  shall  now  proceed  to  offer  such  views  of  the  subject  as  have  oc- 
curred to  me,  subjoining,  however,  in  a  note  hereafter,  a  summary  of  Mr. 
Chitty's,  which  the  student  may  find  useful.  I  have  excluded  from  it  what- 
ever is  obviously  inapplicable  to  us. 

Before  I  proceed  to  the  classification  of  the  different  subjects  of  equita-' 
ble  jurisdiction,  of  which  it  will  be  necessary  to  treat  somewhat  particularly, 
it  may  be  proper  to  remark,  that  the  principles  of  the  civil  law  have  been 
liberally  introduced  into  the  chancery  system  by  those  who  have  built  it  up. 
The  early  chancellors  having  been  ecclesiastics  educated  in  all  the  learning 
of  the  Roman  empire,  naturally  felt  a  partiality  for  the  civil  code  in  which 
they  were  bred,  and  hence  were  very  ready  at  all  times  to  introduce  its  max- 
ims and  its  principles  into  the  system  of  judicature  they  were  erecting. 
Hence  we  often  find  it  advantageous  to  resort  to  the  civil  law,  which  was 
not  only  frequently  engrafted  upon  the  common  law,  but  pervaded  very  ex- 
tensively the  whole  subject  of  equitable  jurisdiction. 

It  will  also  be  proper  to  refer  in  this  place  to  two  or  three  general  prin- 
ciples or  maxims  of  a  court  of  equity,  which  belong  not  exclusively  to  any 
one  branch  of  its  jurisdiction,  but  equally  pervade  the  whole.  We  shall 
thus  be  t^e  better  prepared  to  understand  much  that  we  shall  meet  with  in 
this  bealiil^f\it,t1i6ti^|fi  Artificial  system. 

I.  The  ftfst  nfiaxim  th'at  I  shall  mention  as  prevailing  in  a  court  of  equi- 
ty, is,  that' *^' e^iuityfollows  the  law/'  or  as  it  is  expressed  in  the  law  Latin, 
"  EquiM  seqkiitir  I'^gem." 

■^^^"•"■•-^'    VOL.  2— 50 


394  OF  EQUITY.  [  BOOK  3. 

That  this  rule  is  not  universal  in  its  application  is  obvious  from  the  very 
existence  of  the  distinct  tribunals  of  law  and  equity.  It  may  therefore  not 
be  amiss  to  mention  some  of  the  instances  in  which  this  deference  is  paid 
by  courts  of  equity  to  the  course  of  decisions  of  the  law  courts,  in  doing 
which  we  shall  have  occasion  to  perceive  not  a  few  of  the  cases  in  which 
it  follows  rules  of  its  own  in  direct  conflict  with  the  rules  of  law. 

1.  In  the  construction  of  statutes,  as  I  have  elsewhere  had  occasion  to 
observe,  courts  of  equity  follow  the  law :  for  it  would  be  grossly  inconve- 
nient and  absurd  if  the  acts  of  the  legislature  were  to  be  considered  as 
meaning  one  thing  in  one  court,  and  a  different  thing  in  another  court.  It 
is  true  that  courts  of  equity  have  refused  to  permit  the  statute  of  limitations 
to  affect  a  continuing  express  trust,  and  that  they  decree  specific  perform- 
ance of  parol  contracts  for  the  sale  of  lands  where  there  has  been  part  ex- 
ecution, though  the  statute  of  frauds  has  expressly  declared  all  such  con- 
tracts to  be  void.  In  like  manner  they  compelled  the  borrower  of  money, 
who  sought  relief  in  equity,  to  pay  the  usurer  his  principal,  as  the  price  of 
their  interference,  even  when  the  law  avoided  the  contract  altogether :  and 
they  consider  actual  notice  of  the  registry  of  a  deed  as  eq.uivalent  to  record- 
incr,  because  by  such  notice  the  object  of  the  record  is  attained.  But  these, 
and  perhaps  a  few  other  cases,  must  either  be  looked  upon  us  exceptions 
to  a  well  established  general  rule,  or  as  not  falling  within  its  principles. 
Certain  it  is,  that  the  courts  of  equity  in  various  instances  follow  the  law  in 
reference  even  to  these  statutes.  For  if  the  usurer  is  plaintiiT,  seeking  to 
enforce  his  usurious  mortgage  by  bill  of  foreclosure,  his  mortgage  is  con- 
sidered void,  and  he  is  driven  from  the  forum  with  the  penalty  of  paying  the 
costs.  And  so  as  to  the  statute  of  limitations;  v.henever  the  jurisdiction 
of  the  two  courts  over  the  subject  of  controversy  is  concurrent,  the  statute 
of  limitations  is  recognized  not  less  as  a  bar  in  equity  than  at  law ;  as 
where  a  bill  is  filed  in  equity  for  an  account.  So,  even  where  the  jurisdic- 
tions are  not  concurrent,  as  in  cases  of  trusts,  if  the  trust  is  determined,  the 
statute  is  admitted  to  begin  to  run  from  the  moment  it  is  at  an  end  ;  and  is  a 
complete  bar,  by  analog-y  to  the  operation  of  the  act  in  a  court  of  law. 
Thus,  too,  it  is,  that  the  limitation  to  foreclosures  and  redemptions  has  been 
established  at  twenty  years,  by  analogy  to  the  bar  in  an  ejectment.  As, 
however,  we  shall  have  occasion  to  enter  upon  this  subject  elsewhere,  we 
will  not  enlargie  upon  it  farther  in  this  place. 

2.  In  the  construction  of  wills  or  limitations  v^hich  carry  the  legal  estate, 
the  rule  of  construction  is  always  the  same  in  courts  of  law  and  equity  :  for, 
AS  in  all  matters  which  concern  the  legal  title,  the  courts  of  law,  from  the 
organization  of  the  two  tribunals,  are  predominant,  so  a  court  of  equity, 
when  it  accidentally  acts  upon  the  same  matter,  must  follow  the  law,  or 
there  would  bo  two  conflicting  constructions  to  the  same  will  or  limitation, 
which  would  be  both  inconvenient  and  absurd.  See  1  Fon.  395.  But 
thoufrh  courts  of  equity,  in  the  construction  of  wills  and  such  limitations  as 
carry  the  legal  estate,  follow  the  law,  yet  in  decreeing  the  execution  of 
marriage  articles,  and  in  the  construction  of  executory  trusts,  they  regard 
the  end  and  consideration  of  the  settlement  and  intent  of  the  trusts  beyond 
the  legal  operation  of  the  words  in  which  they  are  expressed.  Ibid.  For 
of  these  matters,  courts  of  law  having  no  cognizance,  there  is  no  danger  of 
any  contlicting  decisions  between  the  courts,  but  equity  having  exclusive 
jurisdiction,  is  at  liberty  to  apply  its  own  principles  in  the  construction  ; 
principles  which  res|)ectthe  intention  and  design  ot',^hf!,p£^fjipsij^^je.r  than 
the  particular  formula  they  have  used  in  declaring  iijjj  |^je/3.i,Ma(|,,^pO,  &c. 

3.  Notwithstanding  the  essential  distinctions  betwepq  ait^gflj  aqd,fiquita- 
blc  estate,  it  is  a  general  principle  that  they  are  govcrnQdv.b^.,W]Cv?3Plfi  rules. 
Thus,  as  the  cestui  que  trust  is  considered  in  equity  as  the  real  Owner  of  the 


CKAP.  21.]  OF  EQUITY.  395 

estate,  he  may  dispose  of  it  without  tlie  intervention  or  assent  of  the  trus- 
tee, unless  that  is  expressly  made  requisite  by  the  deed  itself:  and  his  in- 
terest in  it  will  descend  to  the  same  persons,  and  is  devisable  in  the  same 
manner,  and  is  liable  to  extent  and  curtesy,  and  exeeution,  and  is  govern- 
ed generally  by  the  same  rules  which  would  govern  it  if  it  were  the  legal 
estate.  1  Mad.  362.  3  Vez.  127.  The  case  of  dower  is  in  England  a 
well-known  exception,  though  even  that,  as  we  have  seen,  no  longer  pre- 
vails among  us  ;  so  that  if  we  cannot  agree  with  Sir  Joseph  JekyI,  that 
trusts  are  to  be  universally  governed  by  the  same  law,  and  are  always  with- 
in the  same  reason  as  legal  estates,  we  may  at  least  affirm  that  the  excep- 
tions to  the  rule  are  very  kw  and  anomalous. 

4.  So  strongly  does  the  general  rule  we  are  treating  of  prevail,  that  when- 
ever the  trust  estate  and  the  legal  estate  become  united  in  the  same  person, 
the  former  is  considered  as  merged,  and  the  rule  of  law  which  governs  the 
latter  absolutely  prevails.  Of  this  a  conspicuous  instance  is  afforded  in  the 
case  from  Doug.  741,  cited  by  Mr.  Christian,  2  B.  C.  pa.  337,  which  deci- 
sion is  followed  by  Kent,  Ch.,  1  John.  417.  See,  however,  6  John.  C.  Ca- 
ses, 395,  and  3  Vez.  127,  what  is  said  as  to  their  being  still  considered  se- 
parate in  contemplation  of  equity,  when  justice  or  the  interests  of  the  party 
requires  it. 

5.  Another  instance  of  equity  following  the  law  is  afforded  in  the  admi- 
nistration 0?  legal  assets,  which  are  distributed  among  the  creditors  of  a  de- 
cedeat  according  to  the  dignity  of  the  debts,  as  settled  at  law  ;  whereas  if 
the  assets  are  strictly  equitable,  so  that  they  cannot  fall  within  the  scope  of 
the  powers  of  a  court  of  law,  equity  administers  them  by  an  equal  distribu- 
tion among  the  creditors,  upon  its  own  favorite  principle  that  equality  is 
equity. 

II.  The  second  maxim  I  shall  here  mention  is,  that  where  equity  is  equal 
the  law  shall  prevail.  This  is  one  of  those  principles  growing  as  well  out 
of  the  constitution  of  the  courts,  as  founded  in  good  sense  and  sound  jus- 
tice. As  the  system  of  equity  was  chiefly  built  up  to  remedy  the  defects 
of  law,  and  among  other  things  to  prevent  a  party  from  taking  a  legal  ad- 
vantage when  justice  was  on  the  side  of  his  adversary,  a  court  of  conscience 
might  well  interfere  in  behalf  of  him  who  had  superior  equity.  But  if 
both  parties  are  in  this  respect  on  the  same  footing,  there  could  be  no  rea- 
son for  interference,  and  it  would  be  unjust  and  absurd  to  take  away  the  le- 
gal right  from  him  who  had  it,  without  some  superior  motive,  which  could 
only  be  found  in  superior  equity.  A  court  of  chancery  never  acts,  indeed, 
without  a  motive.  There  must  be  always  something  more  meritorious  on 
one  side,  or  iniquitous  on  the  other,  to  call  it  into  action.  From  this  prin- 
ciple arises  the  general  doctrines  that  a  volunteer  is  rarely  entertained  in  a 
court  of  equity;  that  a  surety  cannot  be  relieved  against  a  creditor,  nor  a 
creditor  be  assisted  in  carrying  the  security's  liability  farther  than  it  extendi 
at  law.  Hence,  too,  has  sprung  that  doctrine — of  such  questionable  pro- 
priety— which  permits  a  third  encumbrancer  who  lends  his  money  without 
notice  of  the  second  encumbrance,  to  buy  in  the  first  encumbrance  and 
squeeze  out  the  second,  by  thus  becoming  the  owner  of  the  legal  title. 
These  doctrines  are  more  particularly  examined  in  their  proper  places. 

III.  He  that  will  have  equity  done  to  him  must  do  equity.  This  is  a 
very  favorite  maxim  of  courts  of  chancery — having  its  foundations  laid  in 
the  first  principles  of  natural  justice,  and  I  aing  recognized  as  a  cardinal 
point  of  our  duty  to  our  neighbor,  by  the  high  authority  of  revelation.  Its 
converse  is,  that  he  that  hath  committed  iniquity  shall  not  have  equity.  By 
the  latter,  the  unjust  suitor  is  absolutely  excluded  from  the  doors  of  the 
court,  which  shuts  its  ears  to  the  complaints  of  the  man  who  has  himself 
stained  his  hands  with  fraud   and  injustice.     Hence  the  other  strong  and 


396  OF   EQUITY.  [book  3. 

figurative  method  of  expressing  this  principle  of  equity,  lliat  he  who  comes 
into  the  court  must  come  with  clean  hands.  Thus  if  a  lessee  seeks  to  be 
relieved  against  the  forfeiture  of  his  lease  for  non-payment  of  rent,  and  it 
appears  that  the  lease  was  obtained  by  fraud,  or  that  he  has  essentially  vio- 
lated its  terms,  his  hands  are  unclean,  and  he  is  turned  away  without  re- 
dress. If  a  debtor  make  a  fraudulent  conveyance  of  fais  property  upon  a 
secret  trust  that  the  grantee  shall  hold  it  for  his  use,  equity  will  not  assist 
him  even  against  his  knavish  associate,  for  he  hath  done  iniquity.  And 
though  in  some  cases  it  hath  been  said  that  where  the  parties  are  not  in 
pari  delicto,  but  one  has  been  made  the  tool  of  the  other,  or  from  his  situ- 
ation was  the  slave  of  his  will,  a  court  of  equity  will  relieve  him  ;  yet  these 
must  be  considered  as  anomalous  cases,  not  impugning  the  general  princi- 
ple, but  supposed  to  be  placed  beyond  its  influence,  by  the  particular  cir- 
cumstance that  the  party  has  not  enjoyed  that  freedom  of  will,  without  which 
he  cannot  be  looked  upon  as  a  moral  agent.  See  1  H.  &  M.  33.  See,  as 
to  the  general  doctrine,  1  Fonb.  128,  218,  &c.  There  is,  indeed,  one  ad- 
mitted and  well  established  exception  to  the  principle  we  are  considering. 
It  is  this ;  that  where  two  parties  are  engaged  in  doing  that  which  the  pol^ 
icy  of  the  law  forbids,  a  court  of  equity  will  sometimes  interfere  to  set  aside 
their  contracts,  even  at  the  suit  of  a  particeps  criminis ;  for  it  is  the  duty 
and  the  province  of  every  court  of  justice  to  lend  its  aid  to  the  maintenance 
of  the  laws,  and  the  prevention  of  their  infraction  :  and  one  of  the  most 
effcctiial  methods  which  can  be  adopted  is,  to  afford  its  aid  in  avoiding  the 
illegal  contract.  But  this  is  done  from  no  tenderness  to  the  plaintiff  wha 
asks  it.  The  relief  is  not  considered  as  administered  to  him,  but  it  is  given 
to  the  public  through  him.  See  1  Rand.  76,  and  the  cases  cited  in  the  ar- 
gument of  the  case  there  reported. 

But  a  court  of  chancery  not  only  refuses  its  aid  to  him  who  does  iniqui* 
(y,  but  when  a  party  asks  equity  it  compels  him  to  do  equity  to  the  person 
from  whom  he  asks  it;  though  the  maxim  does  not  apply  to  the  equity  of 
any  third  person  against  the  plaintiff.  4  Ran.  282.  The  familiar  instance 
of  the  application  of  this  maxim,  put  by  Mr.  Francis,  page  I,  is  indeed  in- 
correct in  point  of  law,  though  it  may  serve  for  illustration.  It  is  the  case 
of  one  sum  of  money  lent  by  A  to  B  on  a  mortgage,  and  a  distinct  sum  on 
bond.  If  B  seeks  to  redeem  the  mortgage,  it  is  said  he  shall  not  be  per- 
mitted to  do  so  unless  he  will  also  pay  the  bond.  Jt  is  obvious,  however, 
that  this  would  in  effect  be  to  create  a  lien  on  the  land  for  the  amount  of 
the  bond,  when  none  such  was  ever  contracted  for,  and  it  is  therefore  deci- 
ded that  such  is  not  the  law.  2  Vez.  jr.  376.  2  Fon.  277.  3  Bro.  C.  C. 
162.  3  Atk.  360.  Tlie  case  of  the  heir  of  the  mortgagor  is  not  liable  to 
the  same  objection,  and  serves  equally  to  illustrate  the  principle  here  stated. 
For  if  the  mortgagor  dies,  his  heir  would  not  be  permitted  to  redeem  with- 
out paying  the  bond,  since  in  his  hands  the  land  is  bound  as  assets  by  de- 
scent, though  it  was  in  no  wise  bound  in  the  mortgagor's  hands.  But  even 
in  the  case  of  the  heir,  the  decision  is  founded  less  upon  the  maxim  we  are 
treating  of,  than  upon  the  principle  of  preventing  multiplicity  of  suits.  It 
is  said  to  be  solely  matter  of  arrangement:  for,  as  the  creditor  might  sue 
the  heir  and  get  payment  out  of  the  land,  circuity  of  action  is  prevented  by 
con)pelliug  the  heir  to  pay  the  amount  as  a  condition  of  redemption  ;  and 
this  is  the  reason  assigned  by  Lord  Thurlow,  3  Bro.  C.  C.  162.  See  2  Fon. 
277.  A  more  apposite  case,  therefore,  is  that  of  two  mortgages  on  the 
same  land,  one  of  which  is  radically  defective;  yet  the  debtor  will  not  be 
permitted  to  redeem  one  without  the  other.  1  Vern.  29,  245.  2  Yern. 
207.     2  Fon.  277. 

There  are  many  other  leading  maxims  of  a  court  of  equity  which  we 
•hall  have  occasion  to  mention,  but  they  will  fall  in  so  readily  with  the  other 


CHAP.  21.]  OF  EQUITY.  397 

divisions  of  our  subject,  thai  it  will  be  unnecessary  to  proceed  to  a  particu- 
lar notice  of  them  here. 

An  accurate  classification  of  the  subjects  of  equitable  jurisdiction  is  a 
matter  of  acknowledged  ditficulty.  "  It  is  not  a  very  easy  task,"  says  Lord 
Redesdale,  "  to  describe  the  jurisdiction  of  our  courts  of  equity.  Those 
who  have  attempted  it  have  generally  failed  ;"  and  he  even  makes  an  apol- 
ogy for  the  attempt  which  is  to  be  found  in  his  admirable  treatise  on  the 
pleadings  in  -a  court  of  equity.  Mitford's  Plead.  5.  There  is  accordingly 
some  diversity  among  those  who  have  turned  their  attention  to  the  subject. 
Such,  indeed,  has  been  the  difference  between  them,  that  I  feel  myself  at 
liberty,  without  hazarding  the  charge  of  presumption,  to  pursue  the  sugges- 
tions of  my  own  mind  in  the  classification  which  I  shall  offer  to  the  stu- 
dent. My  object  shall  be  to  steer  a  middle  course  between  being  too  ge- 
neral and  too  minute :  if  we  are  too  general,  the  subdivisions  of  each  dis- 
tinct head  will  often  prove  arbitrary  and  forced  ;  if  too  minute,  every  ad- 
vantage of  classification  will  be  lost;  and  in  falling  into  either  extreme  we 
shall  find  the  subject  confused  and  obscured,  instead  of  being  illustrated 
and  made  easy. 

Pursuing  this  design,  I  shall  proceed  to  arrange  the  snbjects  of  equitable 
jurisdiction  under  the  following  heads:  1.  Accident:  2  Mistake :  3  Re- 
lief against  penalties  and  forfeitures:  4.  Accounts:  5.  Fraud:  G.  Disco- 
very :  7.  Trusts,  or  second  uses,  as  they  are  sometimes  called  :  8.  Specific 
performance:  9.  Injunctions:  10.  Avoiding  illegal  contracts :  II.  Contri- 
butions :  12.  Substitution  :  1-3.  Want  of  remedy  at  law  ;  14.  Subjects  of 
jurisdiction  conferred  by  statiite  :  15.  Jurisdiction  arising  from  the  abolition 
of  ecclesiastical  courts.  Oftliese  several  grounds  of  jurisdiction,  I  shall  pro- 
ceed to  take  a  rapid  survey.  We  shall  find  that  it  is  not  always  easy  to  de- 
fine very  accurately  the  precise  boundaries  of  jurisdiction  between  the  two 
courts.  -The  jealousies  which  existed  between  them  in  the  early  times  of 
the  court  of  chancery,  gave  rise  to  perpetual  contentions  and  struggles — the 
chancellor  firmly  asserting  and  successfully  acquiring  powers  which  were 
obstinately  contested  by  the  courts  of  law,  and  which  have  at  length  been 
established  beyond  further  controversy,  by  the  continued  practice  of  centu- 
ries. In  these  contests  there  were  doubtless  faults  on  both  sides.  The 
common  lawyers  objected  with  reason  that  the  decisions  of  courts  of  equity 
were  too  much  directed  by  the  arbitrary  discretion  of  the  judge,  and  we  find 
the  vigorous  mind  of  Mr.  Selden  comparing  the  exercise  of  such  a  discre^ 
tiori  to  the  adoption  of  the  chancellor's  foot  as  a  standard  of  measure. 
The  uncertainty  which  such  an  unlimited  discretion  was  calculated  to  cre- 
ate, was  an  evil  of  the  greatest  magnitude,  since  it  is  of  the  utmost  impor- 
tance that  the  laws  of  property  and  of  contracts  should  be  clearly  and  indis- 
putably ascertained  ;  else  no  man  could  know  how  safely  to  enter  into  the 
one,  or  to  settle  and  convey  the  other.  We  find  these  objections  also  very 
strongly  presented  in  a  very  ancient  production  which  the  industry  of  Mr. 
Hargrave  has  saved  from  the  reliques  of  antiquity,  and  which  he  has  placed 
among  his  law  tracts.  "  It  is  not  reasonable,"  says  the  quaint  but  learned 
sergeant,  who  takes  up  Ihe  gauntlet  in  defence  of  the  common  law  ;  "  it  is 
not  reasonable  that  for  a  particular  mannes  cause  which  hath  hurte  himself 
by  his  own  negligence  and  by  his  own  folly,  that  the  common  law  of  the 
realme  should  be  made  void  or  be  set  at  noughte  by  the  suit  of  any  particu- 
lar person  made  in  the  chaunceric  or  any  other  place.  But  if  reformation 
be  had  in  the  said  chauncerie  by  a  subpoena,  the  good  common  law  must  be 
made  as  voyde  and  set  at  noughte.  And  it  seemeth  to  me  that  this  suit  by 
subpoena  is  against  the  common  well  of  the  realme.  For  the  common  well 
of  every  realme  is  to  have  a  good  law,  so  that  the  subjects  of  the  realme 
may  be  justified  by  the  same ;  and  the  more  uncertain  that  the  law  is  in  any 


S98  or  EQUITY.  [  BOOK  3. 

realme,  the  loss  and  the  worse  it  is  for  the  common  well  of  the  realme." 
Hargrave's  Law  Tracts,  pages  234,  235. 

But  these  complaints  can  no  longer  be  made  with  any  show  of  justice. 
The  uncertainty  of  the  law  is  indeed  become  an  adage  ;  but  not  more  justly 
applicable  to  courts  of  eqinty  than  to  courts  of  law  ;  since  the  former  pro- 
ceed by  established  rules,  and  hold  themselves  bound  by  precedents  not  less 
than  courts  of  law.  So  far,  indeed,  from  grasping  at  more  extensive  juris- 
diction, they  have  of  late  been  more  remarked  for  great  solicitude  to  avoid 
an  extension  of  their  powers.  The  strict  rules  of  the  common  law,  indeed, 
which  the  common  lawyers  considered  perfect ;  to  which  they  formerly  ad- 
hered from  perversity,  and  which  it  is  no  longer  necessary  to  change,  be- 
cause their  evils  have  been  remedied  by  the  interference  of  equity,  still  ren- 
ders this  interference  necessary.  For  the  rules  of  the  common  law  are  too 
strict  and  rigid  to  adapt  themselves  to  the  various  wants  of  men,  to  the  ne- 
cessities of  justice,  and  to  the  important  alterations  which  are  continually 
occurring  in  the  changeful  character  of  human  affairs.  With  courts  of  law 
every  thing  must  be  upon  the  square.  But  if  we  take  a  survey  of  human 
life,  we  shall  find  that  this  rectangular  scheme  tvill  never  fit  in  with  all  the 
irregularities  of  human  transactions.  It  will  leave  many  a  nook  and  cor- 
ner uncovered.  But  the  present  system  of  equity  remedies  these  defects, 
and  without  the  exercise  of  arbitrary  discretion,  it  embraces  within  its 
limits  all  that  portion  of  the  field  of  jurisprudence  which  is  not  already  oc- 
cupied by  the  rival  jurisdiction.  That  it  may  sometimes  interlock  is  no 
matter  of  surprise,  nor  should  it  be  of  regret.  In  the  nature  of  the  thing, 
the  boundary  can  never  be  accurately  defined.  It  is  much  better  that  they 
should  lap  than  leave  a  vacancy  : — it  is  much  better  that  there  should  be 
two  courts  which  will  administer  to  the  necessities  of  the  suitor,  than  that 
by  too  great  coyness  and  scrupulousness  in  courts  of  equity,  he  should 
become  the  victim  of  injustice.  Pursuing  these  principles,  a  beautiful  sys- 
tem has  been  erected  between  the  two  courts:  harmonizing  in  its  parts,  and 
efficient  in  its  ends.  There  is  much,  indeed,  that  may  require  correction 
and  amendment,  but  it  may  safely  be  affirmed,  that  the  cavillers  against  it  are 
chiefly  to  be  found  among  those  whose  ignorance  of  the  system  renders 
them  incapable  of  perceiving  its  recommendations,  and  inadequate  to  de- 
cide upon  its  merits.  The  question,  indeed,  which  presents  itself  to  the 
statesman  of  the  present  day,  is  not  so  much  whether  a  system  of  more  sim- 
plicity and  equal  efficiency  might  not  be  adopted,  but  whether  it  would  be 
wise  to  throw  away  an  old  dress  which  sits  well  upon  us  and  serves  all  our 
purposes,  for  a  new  one  which  might  possibly  not  fit  us  so  well,  but  fret  us 
until  in  its  turn  it  should  be  sacrificed  to  our  caprices  and  love  of  change, 

OF    THE    JURISDICTION    OF    EQUITY    IN    CASES, 

I.  "OF  ACCIDENT." 

The  jurisdiction  of  a  court  of  equity  in  cases  of  accident,  I  have  said, 
was  probably  exerted  at  a  very  early  period  of  its  history.  It  is  a  funda- 
mental maxim  with  that  tribunal,  "  That  it  relieves  against  accidents." 
(Francis'  Maxims,  29,)  and  from  the  earliest  times  its  records  furnish  evi- 
dence of  an  adherence  to  it.  A  familiar  instance  is  aflforded  by  the  case  of 
a  lost  bond.  We  have  already  seen  that  until  towards  the  close  of  the  last 
century  no  suit  at  law  could  be  maintained  for  the  recovery  of  the  amount 
of  a  lost  bond,  because  courts  of  law  considered  a  profert  of  the  bond  as  in- 
dispensable. This  doctrine  has,  it  is  true,  been  lately  exploded  ;  3  T.  R. 
151 ;  but  long  before  that  was  effected,  courts  of  chancery  had  been  in  the 
habit  of  relieving  against  the  accidental  loss  or  destruction  of  a  bond  ;  and 


GHAP.  21.]  OF  EQUITY.  399 

their  jurisdiction  having  onco  attnchcd,  they  have  refused  to  permit  them- 
selves to  be  ousted  of  it  by  the  increasing  liberality  of  courts  of  law.  3  Bro. 
218.  9  Vez.  464.  7  Vez.  19,  249.  4  Rand.  541.  This  principle,  upon 
which  they  have  proceeded  since  the  decision  in  Term  llcports,  has  been 
recognized  by  our  courts  in  the  case  of  suits  upon  assigned  bonds,  as  has 
been  shewn  in  the  notes  to  a  former  volume.  See  6  Mun.  23.  5  Mun.  163» 
There  are,  indeed,  many  reasons  why  this  particular  jurisdiction  should  not 
be  abandoned.  The  strictness  of  proof  of  the  lost  bond  required  at  law, 
the  difficulty  of  obuining  it,  and  the  resort  to  the  conscience  of  the  obligor 
which  the  chancery  court  affords,  all  furnish  motives  against  closing  its 
doors  against  such  cases.  In  the  case  of  promissory  notes  and  bills  of  ex- 
change, indeed,  no  profert  being  required  by  the  rules  of  law,  courts  of 
equity  could  on  that  ground  have  no  jurisdiction  over  them ;  and  accord- 
ingly we  find  that  its  interference  has  been  even  recently  refused.  See  lf> 
Vez.  430.  Yet  the  superior  facilities  afforded  by  the  nature  of  chancery 
proceedings,  and  the  right  to  a  discovery  upon  oath,  are  surely  sufficient 
reasons  for  the  exercise  of  its  powers.  In  cases,  too,  of  bills  of  exchange, 
whose  negotiable  character  protects  them  in  the  hands  of  the  holder  from 
any  latent  equity  of  the  drawer  and  endorsers,  there  is  an  advantage  in  the 
equitable  proceeding  which  has  not  yet  at  least  been  secured  by  any  anal- 
agous  regulation  at  law.  In  equity  the  creditor  who  sues  to  recover  the 
amount  of  the  lost  bill,  is  compelled  to  give  sufficient  indemnity  against  it, 
before  he  can  recover.*  1  Vez.  jr.  345.  9  Vez.  4G6.  So  it  is,  also,  in 
England,  with  respect  to  promissory  notes,  which  there  (but  not  here)  are 
like  bills  of  exchange,  unassailable  by  latent  equities.  It  is  true,  that  by 
the  Virginia  statute  a  provision  is  made  that  the  owner  of  a  lost  bill  may, 
upon  giving  the  drawer  indemnity,  demand  from  him  a  new  bill,  and  sue 
him  at  law  if  he  be  refused  ;  but  upon  the  principles  already  mentioned, 
this  would  not  oust  the  court  of  chancery  of  its  already  acquired  jurisdic- 
tion. In  the  case  of  the  Bank  of  Virginia  vs.  Ward,  (6  Mun.  166,)  we  ac- 
cordingly see  a  court  of  equity  entertaining  jurisdiction  for  the  recovery  of 
a  lost  bank  note,  which  stands  upon  the  footing  of  a  bill  of  exchange. 

It  was  at  one  time  seriously  questioned  whether  jurisdiction  in  the  case 
of  a  lost  bond  should  be  exercised  against  a  surety  ;  and,  accordingly,  in 
the  early  cases,  the  courts  refused  to  interfere.  This  arose  from  the  maxim 
already  adverted  to,  that  a  court  of  equity  never  will  bind  a  surety  farther 
than  he  is  bound  at  law.  This,  indeed,  is  a  principle  of  unquestioned 
truth  and  equal  justice,  for  nothing  would  be  more  iniquitous  than  to  bind 
one  man  for  another,  farther  than  he  agreed  expressly  to  be  bound.  But 
the  later  cases  leave  no  longer  a  doubt  that  equity  will  set  up  a  lost  bond, 
even  against  a  surety,  although  they  recognize  the  principle  that  they  will 
not  carry  his  liability  farther  than  it  is  carried  at  law.  2  W.  136,  140.  1 
Call,  418.  2H.  &M.  128.  9  Vez.  464.  1  Ch.  Ca.  77.  "  For  the  surety 
is  not  discharged  by  the  loss  of  the  bond,  but  the  court  only  relieves  against 
the  accident  by  setting  up  the  evidence  of  the  debt."  1  W.  140.  See 
Francis'  Maxims,  72.     1  Fon.  37. 

I  have  already  mentioned  the  case  of  a  suit  to  recover  the  amount  of  a 
lost  bank  note.  6  Mun.  166.t  4  Ran.  186.  In  that  case  the  suitor  had 
remitted  half  of  the  note  by  mail,  retaining  the  other  half.  Some  delusions 
and  differences  of  opinion  had  prevailed,  as  to  cases  of  this  character  ;  the 
banks  supposing  that  they  were  only  bound  to  pay  one  half  of  the  amount 
of  the  note,  if  only  the  half  was  presented,  retaining  tlie  residue  to  meet 

•  See  2  Camp.  211.  6  Esp.  Rep.  152.  Chitty  ou  Bills,  152.  Hesajs  relief  isonly  given  when  llic 
bill  isiiegotialjle. 

tThis  was  a  case  in  equity.  The  liolJer  of  one  half  could  not,  il  is  saiil,  recover  at  law,  lor  there 
in.leinuity  cannot  be  provided.  3  Cainp.  324.  Chitly  on  Bills,  153.  Yet  ace  16  Vez.  4'JO  ;  bul  in  lliat 
case  the  liote  was  nut  negotiable. 


400  OF  EQUITY.  [  nooK  3. 

the  other  half  when  it  slionld  make  its  appearance.  On  the  other  hand, 
it  has  been  decided  in  Pennsylvania  and  South  Carolina,  that  they  were 
bound  to  pay  the  whole  amount  without  indemnity  :  but  the  case  of  the 
JBank  against  Ward,  above  cited,  has  settled  the  principle  to  be,  that  the 
holder  of  the  half  note  must  prove  himself  entitled  to  the  property  in  the 
note  :  that  he  is  then  entitled  to  recover  the  full  amount  but  upon  the  terms 
of  giving  indemnity.     This  is  in  perfect  harmony  with  equitable  principles. 

The  relief  afforded  in  cases  of  lost  securities  for  money,  is  equally  ex- 
tended to  those  of  other  lost  instruments  ;  as  where  a  rent  charge  is  reserv- 
ed by  deed,  and  the  deed  is  lost,  a  court  of  equity  will  interfere.  2  Atk. 
61.  In  like  manner  suppressed  deeds  are  set  up  in  equity,  but  as  they  re- 
fer themselves  more  properly  to  the  head  of  fraud,  they  will  not  be  dilated 
on  here. 

When  a  bill  is  filed  in  equity  to  set  up  a  lost  bond  or  other  instrument, 
the  general  rule  is,  that  it  must  be  accompanied  with  an  affidavit  of  the  loss  ; 
1  Mad.  21.  1  Vern,  247,  310;  for  this  was  not  only  necessary  to  lay  the 
foundation  of  the  jurisdiction,  but  is  properly  required  to  justify  the  intro- 
duction of  the  secondary  evidence  of  parol  proof  of  its  contents.  A  dis- 
tinction, however,  has  been  made  between  those  cases  where  a  discovery 
only  is  sought,  and  those  where  relief,  as  well  as  a  discovery,  is  the  object 
of  the  bill.  To  the  former  no  affidavit  is  necessary  :  for  as  the  complainant 
is  obliged  by  the  general  rule  to  pay  the  costs  of  a  bill  of  discovery,  it  can 
scarcely  be  supposed  he  would  bring  a  bill  of  discovery  only,  if  the  instru- 
ment were  not  really  lost:  the  affidavit  is  therefore  dispensed  with  ;  but 
where  relief  is  prayed,  the  affidavit  is  indispensable,  and  without  it  the  bill 
would  be  subject  to  demurrer.     See  1  Mad.  23. 

Besides  the  case  of  lost  bonds,  there  are,  however,  innumerable  accidents 
against  which  equity  relieves.  Without  pretending  to  go  into  detail  on 
this  fruitful  subject,  I  shall  mention  a  few  instances  by  way  of  illustration. 
Such  is  that  of  the  lease  of  a  colliery,  where  the  mine  became  not  worth 
working,  and  the  tenant  was  bound  to  pay  so  much  per  wey,  he  was  reliev- 
ed against  the  future  rent  and  the  covenant  to  work  the  mine,  upon  paying 
for  all  the  coals  that  could  be  got.  2  Br.  C.  C.  311.  On  like  principles 
depend  many  cases  of  apportionment.  As  where  a  master  died  soon  after 
he  received  his  apprentice  fee,  (1  Mad.  39.  Sed  vide  1  Fon.  363,)  or  a 
slave  soon  after  he  was  hired,  (2  H.  &  M.  5,)  those  accidenti  were  made 
the  grounds  of  equitable  apportionment.  We  must  not  forget,  however, 
that  where  the  property  is  destroyed  even  by  the  act  of  God,  the  tenant 
must  pay  the  rent  according  to  his  covenants,  and  that  if  he  has  expressly 
covenanted  to  repair,  he  is  bound  by  that  covenant,  although  the  subject  of. 
the  lease  (as  a  mill)  has  been  swept  away  by  a  flood.     See  Book  2. 

To  the  head  of  accidents  authors  refer  the  relief  which  is  given  in  cases 
of  quit  rents,  where  from  length  of  time  the  remedy  at  law  is  lost  or  is  be- 
come very  difficult.  This  relief  is  afforded  upon  the  foundation  only  of 
payment  of  the  rent  for  a  long  time,  whence  a  bill  for  such  relief  is  said  to 
be  founded  upon  the  solet.  I  Mad.  25.  See  1  Fon.  144.  Indeed,  that 
the  rent  has  been  for  a  long  time  customarily  paid,  would  seem  to  be  es- 
sential in  such  cases  to  the  right  of  the  party  ;  for  where  there  has  been 
KO  such  payment  of  rent,  a  length  of  time  sufficiently  great  is  held  in  such 
cases  to  raise  the  presumption  that  it  has  been  extinguished.     4  John.  494. 

In  connexion  with  this  subject  of  rents  may  be  mentioned  that  of  confu- 
sion of  boundaries,  so  that  the  landlord  knows  not  on  that  account  how  to 
distrain.  1  Vez.  172.  So,  too,  if  the  corner  trees  and  reputed  boundaries 
of  lands  between  two  tenants  of  the  same  landlord  were  lost,  this  remedy 
would  lie,  I  presume,  to  ascertain  them.     See  I  Mad.  26. 


CHAi>.  2i.]  OF  EQUITY.  401 

To  this  branch  of  equitable  jurisdiction  are  referred  those  various  cases 
where  a  vested  estate  is  defeated  by  some  accident  which  the  party  could 
not  prevent.  Such  cases,  indeed,  are  equally  referrible  to  the  head  of  re- 
lief against  penalties  and  forfeitures,  but  may  also  be  as  U'ell  considered 
here.  It  is  proper,  then,  to  remark,  that  a  marked  distinction  exists  be- 
tween vested  estates  which  are  defeated  by  an  accident,  and  cases  of  con- 
ditional limitation  where  no  estate  has  ever  yet  vested.  "  Precedent  con- 
ditions must  be  literally  performed,  and  a  court  of  equity  never  will  vest  an 
estate  where  by  reason  of  a  condition  precedent  it  will  not  vest  at  law." 
But  it  is  otherwise  with  conditions  subsequent  which  are  to  divest  an  estate, 
for  when  the  court  can  in  any  case  compensate  the  party  in  damages  for 
the  '-non  precise  performance  "  of  the  condition,  there  it  is  just  and  equi- 
table to  relieve,  "  and  particularly  if  the  failure  was  the  result  of  accident;" 
as  if  a  man's  estate  be  upon  condition  to  pay  money  at  a  certain  day,  and 
he  fails  in  payment ;  yet  equity  will  relieve  against  the  forfeiture  upon  pay- 
ment of  the  money.  1  Vern.  63.  But  even  in  cases  of  conditions  sub- 
sequent, "  where  the  party  cannot  be  compensated  in  damages,  it  would  be 
against  conscience  to  relieve  ;  as  where  a  daughter  married  without  such 
consent  as  the  condition  required,  the  non-performance  of  that  condition 
could  not  be  compensated,  and  relief  could  not  be  given."  Ibid.  2  John. 
C.  C.  526.  Equity,  however,  will  in  no  ease  aid  to  divest  an  estate  for 
breach  of  a  condition  subsequent.     4  John.  415. 

In  like  manner,  when  the  forfeiture  may  be  considered  as  a  limitation  of 
the  estate,  or  as  determining  it,  equity  will  not  relieve  ;  as  where  in  England 
a  tenant  for  life  creates  a  greater  estate  than  his  own  which  works  a  forfeit- 
ure, though  it  in  effect  does  no  injury  to  the  remainderman.  1  Mad.  37.  2 
John.  526.  So,  too,  when  a  lease  is  made  to  hold  so  long  as  the  tenant 
shall  not  commit  waste. 

Moreover,  though  equity  will  "  in  many  cases  relieve  to  prevent  the  divest- 
ing of  an  estate,  it  cannot  relieve  to  give  an  estate  that  never  vested,  un- 
less the  remainderman  has  prevented  the  performance  of  the  condition." 
"Where,  therefore,  there  is  a  conditional  limitation  over  on  a  certain  event,  in 
such  case  (unless  the  condition  be  for  payment  of  a  certain  sum  of  money, 
or  be  such  as  that  the  court  can  put  the  party  in  the  same  situation  as  if  the 
condition  had  been  performed^  and  it  is  not  contained  in  a  voluntary  settle^ 
ment,)the  breach  of  the  condition  cannot  be  relieved.  As  in  case  of  a  de- 
vise to  A  with  remainder  over,  if  A  fails  to  execute  a  certain  release;  this 
is  a  conditional  limitation,  and  the  failure  not  relievable.  1  Mad.  35.  14 
Vez.  341. 

We  shall  have  occasion  more  particularly  to  treat  of  this  matter  when  we' 
come  to  the  head  of  penalties  and  forfeitures.  '' 

To  this  head  we  find  referred  by  some  authors,  the  doctrines  of  presump- 
tions from  length  of  time,  either  in  favor  of  an  uninterrupted  possession,  or 
against  a  stale  demand.  For  these  presumptions  are  all  founded  upon  the 
supposed  possible  loss  of  evidence  by  the  destruction  of  papers  or  the  death 
of  witnesses.  They  are  recognized,  indeed,  in  courts  of  law  as  well  as  in 
courts  of  equity ;  for  in  both,  even  a  grant  will  be  presumed  after  a  great 
length  of  time,  accompanied  by  uninterrupted  possession  or  enjoyment  of 
a  right  or  easement ;  and  so  under  like  circumstances  may  livery  of  seisin, 
or  a  surrender,  be  presumed  in  either  court  in  support  of  an  ancient  pos- 
session. See  1  Mad.  25.  Phil.  Ev.  123,  &c.  2  H.  &  M.  370.  Cowper, 
102.  3  T.  R.  151,  158.  So  an  agreement  for  a  lease  will  be  presumed  after 
long  possession  and  payment  of  rent.  4  John.  C.  C.  1.  12  Vez.  25.2,  269. 
2  Vern.  516.     I  Eden's  Rep.  296. 

Our  own  books  afford  some  striking  instances  of  relief  afforded  against 
accidents.     Thus  where  an  executor  confessed  judgment  under  the  belief 
VOL.  2 — 51 


402  MISTAKES^  [book  3: 

that  the  assets  were  adequate  to  the  discharge  of  the  debts,  but  by  an  unex- 
pected depreciation  they  proved  otlierwise,  whereby  he  became  at  law  per- 
sonally liable,  equity  relieved.  1  Ran.  438.  The  like  decision  would  have 
been  made  had  the  assets  been  destroyed  by  inevitable  accident,  as  by 
fire.  2  Free.  1,  cited  1  Mad.  40.  So  if  the  assets  were  recovered  by  a  pa- 
ramount title,  of  which  he  was  not  before  informed.  1  Rand.  421.  So 
where  the  executor  had  recovered  a  mortgage  debt,  and  paid  it  out  to  the 
creditors.  Afterwards,  on  proof  that  the  mortgage  had  been  previously 
paid,  he  was  compelled  to  refund  to  the  mortgagor,  and  had  liberty  to  sue 
the  creditors  to  make  them  refund.     1  Wms.  354. 

In  like  manner,  though  he  who  has  failed  to  caveat  could  not  go  into 
equity  for  the  same  cause  until  the  late  act  of  assembly,  yet  if  he  was  pre- 
vented by  fraud  or  accident  from  filing  his  caveat,  equity  would  relieve  him. 
See  4  Mun.  155.  1  Rand.  114.  1  Mun.  193.  So  ignorance  of  the  claim 
of  his  opponent  is  deemed  sufficient  ground  of  jurisdiction  ;  4  Mun.  176; 
and  it  is  there  said  that  the  party  is  not  to  be  called  upon  to  prove  this  ig- 
norance, (for  it  is  in  the  nature  of  a  negative,)  but  that  his  suggestion  of  it 
v.'ill  suffice  until  it  be  disproved.  Sed  vide,  Id.  179,  and  5  John.  553,  and 
6  John.  683. 

But  while  the  general  principle  is  to  relieve  against  accidents,  there  are 
many  cases  were  such  relief  is  refused,  if  there  has  been  any  laches.  As 
where  in  a  lease  for  lives  the  tenant  has  by  his  lease  a  right  of  renewal  for 
other  lives,  if  he  applies  for  the  renewal  before  the  first  life  expires  ;  his  fail- 
ure to  do  so,  unless  it  arises  from  fraud  or  accident,  (1  Mad.  34,)  will  not 
be  relieved  against.  I  Fonb.  425.  1  Vez.  jr.  470.  3  Br.  C.  C.  529. 
3  Vez.  295.  The  prevalence  of  this  principle  will  be  hereafter  seen  when, 
we  treat  of  applications  for  new  trial  on  the  ground  of  accident  or  surprise. 

In  a  case  where  during  the  suspension  of  specie  circulation,  payment  of 
rent  was  tendered  in  bank  notes  and  refused  through  pique,  yet  it  was  de- 
cided that  this  state  of  the  currency  was  not  such  an  accident  as  could  bo 
relieved  against,  for  to  relieve  in  such  case  would  be  to  assume  legislative 
authority.     1  Mad.  30. 

To  this  head  of  accident  might  properly  be  referred  the  numerous  appli- 
cations to  courts  of  equity  for  relief  by  injunction,  where  by  accident  or 
surprise  a  judgment  at  law  has  been  obtained  against  the  party  ;  but  the  im- 
portance of  this  topic,  and  its  intimate  connexion  with  others,  renders  it 
more  advisable  to  treat  of  the  whole  under  the  distinct  head  of  injunctions. 
We  now,  therefore,  pass  on  to  the  jurisdiction  of  equity  in  cases  of  mistake. 

II.  OF  "MISTAKES." 

Mistakes  may  be  considered  in  reference  either  to  matters  of  law  or  mat- 
ters of  fact. 

1.  Mistakes  in  matters  of  law,  it  is  generally  said,  furnish  no  ground  oi' 
relief,  (1  Mad.  60.  1  Fonb.  108.  2  John.  60.  6  John.  170,)  since  every 
man  is  presumed  to  be  conusant  of  the  law,  and  since,  indeed,  an  avowal 
of  ignorance  is  so  easy  to  be  made,  and  so  difficult  to  be  disproved.  Thus 
where  an  obligee  released  to  one  of  two  obligors,  not  knowing  that  the  re- 
lease would  enure  to  the  discharge  of  the  other,  equity  refiised  to  interfere. 
1  Mad.  60.  1  Fonb.  108.  See,  also,  2  Vern.  243.  1  Br.  C.  C.  92.  2 
Leiffh,  29.  It  is  upon  a  like  principle  that  it  has  been  decided  that  where 
parties  compromise  their  difl'erences  under  a  mistaken  impression  of  the 
law,  derived  from  generally  received  opinions,  which  are  subsequently  over- 
ruled, and  the  law  pronounced  otherwise  by  a  superior  tribunal,  the  com- 
promise will  nevcrtholoss  not  be  disturbed.  2  John.  60.  Still  less  where 
,. parties  eompromise    their  ^uit.<,  will  either  be   permitted   afterwards  to  set 


CHAP.  21.]  MISTAKES.  403 

aside  the  compromise  on  the  ground  that  the  right  of  the  case  was  un- 
doubtedly on  his  side,  for  if  this  could  be  done,  no  valid  compromise  could 
be  entered  into,  as  one  or  other  party  must  be  right,  and  one  or  other  would 
therefore,  on  this  principle,  always  have  a  rio-ht  to  vacate  it.  1  Vez.  444. 
2  Ran.  442.     1  P.  Wms.  727. 

But  notwithstanding  the  law  is  laid  down  thus  generally,  we  see  occa- 
sional apparent  deviations  from  the  rule.  Thus  relief  has  been  afforded 
where  a  general  delusion  has  prevailed  on  the  subject  of  a  point  of  law.  G 
Mun.  557.  So  the  doctrine  that  a  release  to  one  shall  enure  to  both,  has 
been  questioned  as  strictly  applying  in  a  court  of  equity,  which  it  is  said 
will  not  extend  the  operation  of  the  release  beyond  the  clear  intention  of 
the  parties  and  the  justice  of  the  case,  but  will  construe  it  to  relate  to  the 
particular  matter  intended  to  be  released.  Kirkby  vs.  Taylor,  6  John.  C. 
R.  242. 

We  shall  see,  too,  when  we  examine  the  subject  of  applications  for  new 
trial  on  the  ground  of  mistake,  that  the  courts  have  not  always  harshly  re- 
fused relief;  but  in  these  cases  it  will  be  observed  that  the  mistake  is  mere- 
ly in  the  remedy,  and  not  in  the  contract :  and  although  it  would  open  a 
door  to  frauds  if  parties  were  permitted  so  readily  to  impugn  their  contracts 
on  the  ground  of  a  mistake  in  the  law,  yet  there  seems  to  be  less  objection 
to  giving  relief  to  a  party  whose  own  ignorance  or  that  of  his  counsel  has 
led  to  an  error  in  the  mode  of  prosecuting  his  rights,  or  in  defending  them 
against  another.     See  4  Mun.  C8. 

2.  Mistake  as  to  matters  of /acris  a  very  ordinary  ground  of  equitable 
jurisdiction.     Thus, 

Mistakes  in  instruments  of  conveyance  are  often  the  subject  of  relief;  for 
equity  will  aid  defective  conveyances  where  they  are  made  on  good  or  va- 
luable consideration,  and  will  supply  the  want  of  livery  or  of  a  surrender. 

1  Mad.  41,  42,  43.  So  it  will  relieve  against  defects  in  the  execution  of  a 
power;  Ibid,  44  ;  and  if  there  be  a  plain  mistake  in  a  contract  in  writing, 
and  it  is  clearly  proved  to  have  been  written  contrary  to  the  intention  of  the 
parties,  the  mistake  will  be  rectified.     The  proof,  indeed,  may  be  by  parol ; 

2  John.  C.  Ca.  585.  1  Wash.  14 ;  but  it  must  be  clear  and  satisfactory. 
2  John.  C,  C.  274,  585,  G.32.  Or,  as  others  have  said,  it  must  be  strong, 
.irrefragible  evidence.  1  Br.  341,  -344.  3  Br.  454.  See  also  2  Call,  5.  2 
Mun.  187.  6  Mun.  4-39.  So,  too,  a  mistake  in  one  writing  may  be  cor- 
rected by  another.  3  H.  &  M.  144.  But  where  deeds  have  been  execut- 
ed to  establish  the  peace  of  families,  or  there  has  been  a  purchaser  for  valu- 
able consideration  in  confidence  of  the  arrangement,  no  relief  will  be  given 
though  the  party  may  have  acted  under  a  mistaken  apprehension  of  his 
rights.     1  Mad.  G2. 

On  like  principles,  marriage  settlements  of  real  or  personal  estate  will 
be  reformed  if  the  settlement  be  not  according  to  the  articles  upon  which 
it  is  founded  ;  or  even  though  it  follow  the  words  of  the  articles,  yet  if  the 
obvious  general  intention  of  the  parties  will  be  defeated  thereby,  equity  will 
rectify  it  so  as  to  further  that  intention.  1  Mad.  50.  The  general  princi- 
ple upon  which  this  interposition  takes  place,  and  even  the  articles  them- 
selves are  rectified  by  directing  a  strict  settlement,  is  that  they  are  only 
heads  or  short  notes  of  the  agreement,  intended  to  be  drawn  out  at  length 
according  to  the  usual  course  of  such  settlements,  and  that  a  provision  for 
the  issue  of  the  marriage  is  usually  the  great  and  immediate  object  in  view  ; 
which  object  would  be  defeated  by  leaving  the  power  of  disposition  in  the 
parents.  In  all  such  cases  the  issue  are  looked  upon  in  the  favorable  light 
of  purchasers.     3  H.  &  M.  399.     1  Sch.  &.Lefroy,  87.     1  Wash.  47. 

On  this  subject,  however,  a  distinction  is  to  be  observed  between  those 
cases  where  the  settlement  is  not  executed  until  after  the  marriage,  the  ar- 


404  MISTAKES.  [  BOOK  3 

tides  havinfT  been  made  before, — and  those  in  which  ihe  settlement  as  well 
as  the  articles  are  executed  before  marriage.  For  in  the  latter  case  it  will 
be  presumed  (unless  the  settlement  is  expressly  declared  to  be  made  in 
pursuance  of  the  articles)  that  the  parties  had  changed  their  intention, 
which  they  may  do  before,  but  cannot  after  marriage.     1  Mad.  52.     1  Ran. 

Among  the  instances  of  remedy  against  mistakes  in  deeds  and  convey- 
ances, may  be  jjlaced  those  cases  in  which  applications  have  been  made  by 
the  vendors  and  vendees  of  land  to  have  an  equitable  allowance  for  excess 
or  deficiency  in  the  estimated  quantity  of  a  tract  of  land  conveyed.  Thus 
if  A  sells  a  tract  to  B,  which  is  described  or  supposed  to  contain  one  hun- 
dred acres,  and  it  turns  out  that  there  is  either  an  excess  or  deficiency  of 
fifty  acres,  the  vendor  in  the  first  case,  and  the  purchaser  in  the  last,  would 
seem  entitled  to  some  allowance  for  the  difference.  In  Virginia,  where 
early  surveys  have  been  very  inaccurate,  this  question  has  frequently  occur- 
ed.  It  seems  to  have  been  at  one  time  supposed  that  the  use  of  the  terms 
"  more  or  less" — as  "one  hundred  acres  of  land,  be  the  same  more  or 
less,"  would  exclude  either  party  from  relief  for  excess  or  deficiency.  But 
the  first  case  on  the  subject  negatived  this  fallacy,  and  decided  that  although 
those  words  in  case  of  a  sale  in  gross,  cover  any  deficiency,  however  great, 
(see  2  Rand.  61,)  yet  they  do  not  preclude  an  inquiry  into  the  real  nature 
of  the  contract ;  that  in  all  cases  of  contracts  for  the  sale  of  lands  by  a  spe- 
cific number  of  acres,  the  parties  are  entitled  respectively  to  compensation 
for  deficiency  or  excess  in  that  quantity  beyond  what  may  be  reasonably  im- 
puted to  small  errors  from  variation  of  instruments,  or  otherwise.  But  that 
where  the  contract  is  to  sell  a  tract  for  so  much  as  it  may  contain,  whether 
it  be  a  greater  or  smaller  number  of  acres  than  that  at  which  it  is  estimat- 
ed, the  purchaser  takes  the  risk  of  gain  or  loss  by  deficiency  or  excess 
in  the  number  of  acres  contemplated  ;  and  neither  can  resort  to  the  other 
for  compensation  on  the  ground  of  either  event.  1  Call,  301.  4  Mun. 
332.  To  express  the  rule  shortly, -^vvhere  the  purchase  is  in  gross,  no 
compensation  is  allowed  for  deficiency  or  excess  ;  where  it  is  by  the  acre, 
such  compensation  may  be  allowed.  In  the  first  case  the  parties  both  in- 
cur the  risk  ; — it  is  a  contract  of  hazard  which  is  not  unlawful,  and  by 
which  they  must  abide,  or  there  would  be  no  hazard.  In  the  latter  case 
they  eschew  the  hazard,  and  if  there  be  a  mistake  in  quantity  it  ought  to 
be  rectified.  See  2  Randolph,  51,  67,  where  all  the  cases  on  this  subject 
are  reviewed.     See  also  Gilmer,  159. 

It  is  true  that  circumstances  may  sometimes  vary  the  application  of  the 
rule  established  by  these  cases,  but  the  rule  itself  is  now  incontrovertible. 
If,  for  instance,  a  sale  be  made  even  in  gross,  and  the  deficiency  occurs  by 
reason  of  an  error  in  the  boundaries,  the  buyer  is  entitled  to  relief  because 
he  docs  not  get  the  specific  thing  he  contracted  for.  See  Hull  vs.  Cun- 
ningliam,  cited  and  commented  on  2  Rand.  52.  If  the  vendor  knowingly 
makes  a  false  representation  of  the  quantity,  or  his  own  title  papers  call  for 
only  one  hutidrcd  acres,  and  he  sells  the  tract  as  containing  by  estiniation 
one  hundred  and  fifty,  more  or  less,  this  is  a  fraud  ;  and  whether  the  con- 
tract be  construed  to  be  in  gross  or  not.  the  deficiency  must  be  accounted 
for.  2  H.  &  M.  161,  173.  2  Mun.  179,  290.  On  the  other  hand,  if  the 
purchai'cr  doe?  agroo  to  pay  by  the  acre,  yet  if  he  agree  to  take  it  by  the 
patent  or  surrey  already  wade,  ns  fixing  the  number  of  acres,  he  thereby 
makes  it  a  contract  of  risk,  ;ind  must  abide  any  deficiency.  6  Mun.  188. 
Before  quitting  this  .sui>j(;ct  it  may  be  proper  to  observe,  that  the  measure 
of  compcnpaiioii  pr;r  nrrc  for  excess  or  deficiency  iu  these  cases,  is  the  con- 
met  price  of  ihf>  land.  2  H.  ^  M.  164.  1  Mun.  493,  63.  5  Mun.  342. 
.See  as  to  cviciion*,  3  Call.  :]?JJ.    5  Mun.  415.    1  H.  &  M.  202.    2  Rand.  13^-J. 


CHAP.  21.]  MISTAKES.  405 

Mistakes  in  (he  contract  itself  are  oftentimes  grounds  of  relief  in  equity  ; 
see  13  Vez.  427;  and  wlu-re  the  nature  of  the  case  requires,  the  contracts 
will  be  set  aside.  As  where  the  vendee  is  ignorant  of  his  rigiits  ;  1  P.Wnis. 
239.  2  Br.  C.  C.  150  ;  or  where  a  distributee  sohJ  h(^r  t^hare  of  an  estate, 
under  a  great  misapprehension  of  its  value  ;  1  Vez.  4U0  ;  or  where  A  bought 
his  own  land  of  B  by  mistake  ;  1  Vez.  126;  or  a  niorlgagor  by  mi.stako 
paid  off  the  mortgage  a  second  time;  1  P.  Wms.  351  ;  or  where  a  party 
paid  money  by  mistake,  though  neither  fraud  nor  discovery  were  alleged  as 
ground  of  jurisdiction  :  in  all  these  cases  relief  was  given.  The  rescission 
must  be  in  toto;  there  can  be  no  partial  rescission.  3  Leigh,  113.  It  is 
laid  down,  indeed,  that  where  both  parties  are  mistaken,  and  ihe  fact  in  its 
nature  doubtful  and  equally  unknown  to  both,  equity  will  not  relieve.  As 
where  there  was  a  sale  of  land  lor  £20,  which  proved  to  be  worth  £200,  yet 
as  neither  party  knew  its  value,  equity  would  not  relieve.  1  Mad.  03.  Yet 
this  decision  rests  rather  upo«  its  being  matter  of  opinion  and  judgment,  and 
a  fair  subject  of  specula-tion  and  risk,  than  upon  the  circumstance  that  both 
parties  were  ignorant :  for  the  circumstance  of  both  parties  having  been  mis- 
taken seems  in  other  cases  to  have  been  an  essential  ground  of  relief.  3 
Vez.  427.  Thus,  where  there  was  a  misunderstandiiig  between  the  parties, 
a  specific  performance  ought  not  to  be  decreed.  5  Mun.  185,  187.  And 
where  both  parties  were  mistaken  as  to  the  situation  and  other  circumstnnces 
materially  affecting  the  value  of  land,  (6  Mun.  283.  1  Vez.  jr.  210,^  or  there 
was  a  mistake  in  relation  to  the  existence  of  an  important  fact,  of  which 
both  parties  were  ignorant,  (6  Mun.  2SG.  2  Rand.  ()(},)  relief  was  afford- 
ed. 3  Leigh,  113.  Nothing,  therefore,  is  more  clear  than  that  mistake  is  a 
ground  of  relief:  "  but  it  must  be  a  plain  mistake,  and  one  which  affects, 
in  an  important  degree,  the  subject-matter  of  the  contract."  G  Mun.  297. 
See  also  New.  432.  2  Pow.  on  Con.  196.  Pothieron  Oblig.  14.  1  Call, 
316,  317.  Where,  indeed,  there  is  a  hidden  but  certain  advantage,  which 
is  known  to  the  buyer  but  not  to  the  seller,  and  there  is  any  obligation  on 
him  to  make  the  discovery,  (as  if  he  were  agent  or  trustee,)  this  might  be 
sufficient  to  avoid  the  contract;  for  it  would  not  amount  only  to  mistake  on 
one  side,  but  to  fraud  on  the  other.  But  if  there  was  no  such  obligation  it 
would  seem  to  be  otherwise.  "  I  do  not  agree,"  says  Lord  Thurlow,  "  with 
those  who  say,  that  where  an  advantage  has  been  taken  in  a  contract  which 
a  man  of  delicacy  would  not  have  taken,  it  must  be  set  aside.  Suppose  that 
A  knows  there  is  a  mine  on  the  estate  of  B,  of  which  B  in  ignorant,  and 
buys  the  estate.  Would  the  court  set  the  contract  aside?"  He  answers 
in  the  negative,  because  the  buyer  was  not  obliged  to  make  the  discovery. 
To  set  aside  the  transaction  there  must  be  such  obligation.  "The  court 
will  not  correct  a  contract  merely  because  a  man  of  nice  honor  would  not 
have  entered  into  it.  It  must  fall  witliin  some  definition  of  fraud.  The  rule 
must  be  drawn  so  as  not  to  affect  the  general  transactions  of  mankind."  2 
Br.  C.  C.  420.  But  where  a  person  acquires  the  knowledge  of  this  hidden 
advantage  as  trustee,  agent,  or  servant  of  another,  and  conceals  the  know- 
ledge so  gained  from  that  other,  he  may  have  the  hands  of  a  court  of  justice 
laid  upon  him  as  for  a  fraud.  Ibid.  424.  In  1  Call,  328,  Judge  Pendleton 
puts  the  case,  from  Tully's  Offices,  of  a  vessel  going  into  Rhodes  in  time  of 
scarcity,  laden  with  grain,  and  knowing  there  were  others  pressing  sail  for 
the  same  port.  He  asks  whether  the  captain  was  bound  to  disclose  this 
fact,  or  was  authorized  to  conceal  it  and  to  avail  himself  of  the  enhanced 
price  the  concealment  would  secure  to  him.  He  decides  like  Lord  Thur- 
low, that  whatever  might  be  the  dictates  of  a  scrupulous  honor,  there  was 
HO  legal  obligation  to  make  the  discovery,  nor  were  the  contracts  tainted 
with  fraud  which  were  made  under  this  suppression  of  a  fact  well  known  to 


406  ■RIISTAKES.  I  iiooK  3. 

one  of  the  contracting  parties.  This  subject,  hov/ever,  more  particularly 
refers  itself  to  the  head  of  fraud. 

It  will  be  proper  now  to  add  here  a  few  cases  of  mistake  which  do  not 
fall  under  the  foregoing  heads.  Such  as  mistakes  in  delivering  up  a  deed; 
9  Vez.  275  ;  mistaken  acknowledgments  of  boundary  ;  1  Hand.  403.  3 
Hand.  14 ;  and  the  omission  to  have  a  deed  recorded  within  the  time  re- 
quired by  law.  In  the  first  of  these  cases  relief  would  be  given  against  the 
mistake  :  in  the  second  the  mistaken  acknowledgment  would  not  be  per- 
n)itted  to  prejudice  :  and  in  the  third  a  decree  for  a  new  deed  that  might  be 
duly  recorded,  would  be  made.  This  indeed  would  not  now  be  necessary, 
provided  the  deed  was  so  attested  as  to  admit  of  being  proved  and  record- 
ed ;  for  (as  the  law  now  stands)  whenever  recorded  its  ethcacy  commences. 

Mistakes  in  wills  are  frequently  relieved  against  in  equity. 

"  As  where  there  was  a  mistake  in  a  statement  in  the  will,  and  the  mis- 
take was  clear,  and  the  intention  plain,  the  court  rectified  the  mistake  ac- 
cording to  the  intention.  Bat  in  all  these  cases,  the  mistake  must  appear 
on  the  face  of  the  will,  otherv/ise  no  relief  will  be  given.  Evidence  as  to 
Blatter  dehors  the  will  to  show  the  mistake  is  not  sufficient.  The  mistake 
■inust  be  a  clear,  demonstrable  mistake ;  and  wherever  there  is  a  clear  mis- 
take, or  a  clear  omission,  recourse  is  to  be  had  to  the  general  scope  of  the 
■will,  and  the  general  intention  is  to  be  collected  from  it ;  but  the  first  thing 
.to  be  proved  is,  that  there  is  a  mistake. 

"  Where  a  testator  by  his  will  gives  legacies  to  A  and  B,  describing  thera 
as  grandchildren  of  C,  and  their  residence  in  America,  and  by  a  codicil  he 
revoked  these  legacies,  giving  as  a  reason  that  the  legatees  were  dead;  but 
that  not  being  true,  it  was  held  that  the  will  was  not  revoked,  and  that  they 
were  entitled  to  the  legacies,  upon  proof  of  identity. 

"So,  where  the  residue  of  three  per  cent,  annuities  was  given  to  •  the 
itwo  daughters  of  A,'  and  A  had  three  daughters:  they  all,  on  the  ground 
of  mistake,  were  decreed  to  take  equal  shares. 

"  And  where  a  specific  sum  was  given  as  a  residue  and  miscaZcuZaief?,  the 
.real  residue  was  allowed  to  pass. 

"  A  mistake  in  the  name  of  a  legatee,  may  be  corrected  in  favor  of  the 
legatee  by  articles  of  description,  sutliciently  pointing  out  the  person  in- 
tended to  take,  and  this,  though  both  the  chrisiian  and  surname  be  mista- 
ken. So,  in  the  case  of  a  legacy,  parol  evidence  is  admissible  to  explain 
a  nick-name,  or  where  there  are  two  persons  of  the  same  name,  but  not  to 
fill  up  a  blank  in  a  will.  In  cases  where  evidence  is  admitted  and  operates, 
it  must  be  conclusive  to  have  efiect:  if  it  affords  only  a  high  degree  of  pro- 
bability it  is  insufficient. 

"  Where  a  will  is  cancelled  by  mistake,  or  on  a  presumption  that  a  latter 
will  is  good,  which  proves  void,  this  will  not  let  in  the  heir,  but  is  relieva- 
ble  in  equity."      1  Mad.  GG,  67,  68. 

Mistakes  of  arbitrators  are  also  subjects  of  equitable  cognizance,  but 
have  been  sufliciently  spoken  of  under  the  head  of  arbitrament  and  award. 

Notwithstanding  the  ready  assistance  afforded  by  equity  in  relieving 
against  mistakes,  and  though  it  aid  defective  executions  of  powers,  and  sup- 
plies the  want  of  livery  and  other  ceremonies,  yet  it  never  can  remedy  the 
omission  of  any  formality  in  conveyances  which  are  required  by  act  of  par- 
liament in  England,  or  of  the  assembly  here.  Hence  I  have  ahvays  been 
of  opinion  that  if  the  privy  examination  of  a  feme  covert  is  essentially  de- 
fective, it  is  not  in  the  power  of  a  court  of  equity  to  remedy  the  defect; 
and  such  I  understand  to  have  been  the  decision  of  the  court  of  appeals  in 
the  case  of  Hardy  vs.  Preston,  which  is  not  reported,  but  in  which  I  was 
of  counsel.     See  13  Vez.  5^6.     See,  also,  3  Br.  571. 


CHAP.  21.]  PENALTIES  AND  FORFEITURES.  407 

III.  OF  "PENALTIES  AND  FORFEITURES." 

The  relief  against  penalties  and  lorfeitures  is  a  favorite  branch  of  equita- 
ble jurisdiction,  and  was  probably  among  the  earliest  exercises  of  it.  The 
simplest  instance  is  afforded  in  the  case  of  a  bond  in  a  penalty;  c.  g.  in 
the  penalty,  of  one  hundred  pounds,  conditioned  for  the  payment  of  fifty 
pounds  at  a  certain  day.  By  the  common  law,  if  default  be  made  in  the 
payment  even  for  a  single  day,  the  creditor  would  have  a  right  to  demand 
and  receive  the  full  penalty  of  one  hundred  pounds.  But  courts  of  equity 
considering  the  real  object  of  the  penalty  to  be  the  securing  the  payment  of 
what  was  justly  due,  and  regarding  it  as  liard  and  unjust  that  the  penalty 
should  be  exacted,  interfere  by  injunction,  relieve  against  the  penalty,  and 
compel  the  creditor  to  accept  his  principal  and  interest  in  full  of  his  bond. 
So  with  a  mortgage  ;  after  the  day  of  payment  is  past,  the  estate  of  the 
mortgagee  was  absolute :  but  equity  looking  on  the  mortgage  in  its  true 
light,  only  as  a  security  for  money,  and  reprobating  the  injustice  of  a  poor 
debtor  forfeiting  a  valuable  estate  forever,  because  he  had  failed  to  pay  his 
debt  at  the  stipulated  moment,  relieved  against  this  forfeiture  by  the  crea- 
tion of  what  is  called  an  Equity  of  Redemption;  according  to  the  prin- 
ciples of  which,  the  creditor  is  compelled  to  surrender  the  land  and  re- 
lease his  title  to  it,  upon  receiving  his  principal  and  interest  and  costs. 
This  doctrine  gradually  extended  itself  to  other  cases ;  such  as  that  of  a- 
tenant  who  forfeited  his  lease  for  non-payment  of  his  rent,  (1  Mad.  31,) 
and  the  great  variety  of  cases  where  penalties  are  inserted  in  bonds  or  con- 
tracts merely  to  secure  the  enjoyment  of  a  collateral  object.  In  all  these 
cases  equity  pursues  its  favorite  maxim,  "that  it  regards  the  substance  and 
not  the  form  of  things,"  and  considers  the  enjoyment  of  the  object  as  the 
principal  intent  of  the  deed,  and  the  penalty  only  as  accessorial,  and  de- 
signed to  secure  the  damage  really  incurred.  In  these  cases,  therefore,  if 
the  penalty  is  sued  for  at  law,  an  injunction  will  be  granted,  and  an  issue 
quantum  damnificatus  directed.     1  Br.  C.  C.  418.     2  Br.  C.  C.  341. 

Covenants  also  are  by  courts  of  law  required  to  be  strictly  and  literally 
performed  :  but  in  equity  a  substantial  performance  according  to  the  real 
intent  of  the  parties,  so  far  as  circumstances  admit,  will  suffice :  and  if  by 
unavoidable  accident,  fraud,  surprise,  or  real  ignorance,  the  party  has  been 
prevented  from  a  literal  execution,  relief  will  be  given  upon  compensation 
being  made.  1  Mad.  29.  This  principle  generally  prevails  as  to  payment 
of  money  ;  for  the  failure  to  pay  is  always  capable  of  being  compensated 
by  a  decree  for  principal  and  interest,  nor  is  it  allowed  to  the  creditor  ta 
object  that  if  the  money  had  been  punctually  paid,  he  would  have  made  a 
great  advantage  by  it ;  for  in  all  such  cases  the  interest  of  the  money  is  the 
measure  of  compensation  ;  and  "not  the  profit,"  says  Judge  Pendleton, 
"  which  might  be  made  by  speculation  in  a  basket  of  earthenware,  or  other- 
wise." 2  Call,  431,  4-33.*  It  is  true  that  the  time  of  payment  may  be  of 
the  essence  of  the  contract,  and  lohen  it  is  the  party  cannot  avail  himself  of 
equitable  circumstances  unless  he  shews  that  there  has  been  no  wilful  ne- 
glect or  misconduct  on  his  part.  3  Br.  G92,  cited  1  Mad.  30.  But  unless 
the  time  of  payment  be  of  the  essence  of  the  contract,  the  failure  to  pay 
will  not  debar  the  party  of  relief;  though,  as  we  shall  see  under  the  head 
of  specific  performance,  unreasonable  delay  may  exclude  him  from  the  right 
to  enforce  his  contract  thus  broken  in  a  material  point.  I  shall  here  only 
refer  to  the  following  authorities  :  1  Mad.  326.  13  Vez,  226,  228.  4  Vez. 
497,  686.  5  Vez.  736.  7  Vez.  202.  12  Vez.  326.  19  Vez.  220.  4 
John.  559.     1  Fonb.  424,  &c. 

•  Sed  vide  13  Vez.  434.    In  cases  of  public  couipniiiep,  and  often  belwecii  iiuIiviJuaLs  b^iv s  sir  \\  . 
Gr;i!jt,  imeieet  is  not  adequate  com[iensatioi». 


408  PENALTIES  AND  FORFEITURES.  [  book  3. 

It  is  said  that  if  money  be  lent  at  4  per  cent.,  but  if  not  punctually  paid 
then  to  pay  5  per  cent.,  this  is  a  penalty,  and  equity  will  relieve.  But  if 
interest  is  reserved  at  5  per  cent.,  and  the  creditor  agrees  to  accept  4  per 
cent,  if  the  money  be  duly  paid,  this  is  no  penahy,  and  the  court  will  not 
relieve  if  the  party  loses  the  advantage  by  failing  to  pay  punctually.  1  Mad. 
28.  In  like  manner,  when  a  bond  provided  for  payment  of  money  at  a  fu- 
ture day,  with  interest  from  the  date  if  not  punctually  paid,  the  back  inte- 
rest was  considered  as  a  penalty  and  relieved  against.  6  Mun.  71.  Gil. 
172.  So  where  a  future  day  of  payment  is  fixed  for  the  principal  but  the 
interest  is  payable  annually,  astipulation  that  on  failure  to  pay  the  interest, 
the  principal  shall  be  considered  due,  is  in  the  nature  of  a  penalty  and  the 
subject  of  relief  5  Mun.  495.  It  would  seem,  too,  that  where  a  debt  was 
payable  at  a  future  time,  that  is  the  time  at  which  the  interest  shall  run,  un- 
less the  contrary  be  expressly  provided.  1  H.  Sc  M.  211.  The  ground  of 
relief  in  all  these  cases  is  the  forfeiture  or  penalty  : — the  compelling  the 
debtor  in  case  of  default  to  pay  more  or  sooner  than  he  owed.  For  where, 
on  the  other  hand,  the  creditor  gives  up  a  part  of  his  rights,  either  as  to 
quantum  or  time  of  payment,  upon  condition  of  punctuality,  the  debtor 
cannot  have  relief  in  default  of  punctuality.     See  10  Vez.  372. 

But  though  equity  relieves  against  forfeitures,  "  that  relief  is  only  dis- 
pensed in  those  cases  in  which  ths  court  can  do  it  with  safety  to  the  other 
party,  for  it  seems  if  it  cannot  put  him  into  as  good  a  condition  as  if  the 
agreement  had  been  performed,  it  will  not  relieve."  It  therefore  only  re- 
lieves where  the  thing  to  be  done  admits  of  being  done  afterwards,  of  a 
compensation  can  be  made  for  it ;  and  unless  a  full  compensation  can  be 
made,  it  will  not  interfere.  2  John.  526.  12  Vez.  29J.  Thus  if  by  the 
terms  of  a  lease,  it  is  to  be  forfeited  in  case  the  tenant  aliens  or  assigns 
without  license,  equity  will  not  relieve  him  if  he  does  alien  or  assign  con- 
trary to  this  condition  :  for  it  is  impossible  to  fix  any  measure  of  damages; 
and,  indeed,  the  very  provision  is  introduced  to  prevent  a  tenant  being  forc- 
ed upon  the  landlord  against  his  will,  or  in  other  words,  to  secure  to  him 
the  right  to  choose  his  own  tenant.  I  Mad.  30.  A  sale,  however,  of  the 
lease,  as  a  chattel,  for  payment  of  debts  under  execution-,  would  be  no  for- 
feiture.    See  2  T.  R.  133,  425.     1  Ch.  Ca.  170.     1  Mad.  31. 

Indeed,  though  equity  does  relieve  against  a  breach  of  covenant,  it  i3 
confessedly  a  very  delicate  subject  of  jurisdiction,  and  has  been  termed  a 
dangerous  one.  It  has,  however,  been  repeatedly  ejiercised  in  behalf  of 
tenants  who  have  forfeited  their  leases  by  non-payment  of  rent;  see  1  Mad. 
31,  quoting  numerous  authorities;  and  has  even  been  exerted  against  a 
forfeiture  and  right  of  re-entry  upon  a  tenant,  for  not  laying  out,  according 
to  covenar^t,  a  specific  sum  in  repairs  in  a  given  time.  12  Vez.  282.  But 
Lord  Eldon  seems  not  to  have  concurred  in  the  propriety  of  such  relief, 
except  in  cases  of  accident  and  surprise.  I6Vez.406.  18  Vez. 62.  And, 
indeed,  it  is  clear  that  if  the  tenant's  misconduct  has  been  gross  and  ruin- 
ous, or  wilful  and  voluntary,  he  will  be  remediless.  16  Vez.  404.  18  Vez. 
62.  3  H.  &.  M.  436.  So,  where  he  has  failed  to  comply  with  covenants  foF 
improvements,  such  as  building,  clearing,  planting  orchards,  and  the  like, 
he  will  not  be  countenanced  by  a  court  of  equity,  except  where  complete 
compensation  can  be  m-^de  and  is  made.  It  may  be  proper,  too,  to  remark, 
that  these  doctrines  apply  with  great  force  to  leases  for  lives.  In  leases 
for  years,  if  the  covenants  have  not  been  performed,  and  the  term  yet  to 
come  is  very  long,  (e.  g.  ninety-nine  years,)  there  is  less  reason  for  strict- 
ness with  the  tenant:  for  his  performance  is  less  important  to  his  landlord 
than  to  himsQlf,  and  ample  time  is  afibrded  for  making  amends  for  the  de- 
ficiency. But  in  leases  for  lives  it  is  the  landlord's  interest  thai  his  farm 
should  always  brj  in  the  stipulated  slate  of  improvement,  since  the  lease 


CHAP.  2L  ]  ACCOUNTS.  409 

may  possibly  terminate  very  suddenly;  and  if  the  improvements  are  not 
made,  he  encounters  difficulty  and  sustains  loss  in  getting  another  tenant. 
This  is  adverted  to  very  justly  by  Judge  Roano,  in  the  case  from  3  H.  &  M. 
430.  In  such  a  case,  too,  it  is  impossible  that  the  tenant  who  lias  not 
planted  an  orchard  (for  instance)  which  requires  much  time  to  bring  it  to 
maturity,  can  make  compensation  by  specific  performance,  nor  can  the 
failure  be  fairly  estimated  in  damages.  Still  more  where  the  wrong  done 
is  wilful  and  destructive  of  the  inheritance,  as  where  the  tenant  wastes  and 
destroys  the  timber  or  houses,  or  uses  them  for  a  purpose  against  which  he 
expressly  covenanted  ;  18  Vcz.  188  ;  for  in  all  these  cases  his  own  conduct 
is  so  marked  by  "  iniquity  that  he  will  be  denied  the  aid  of  equity." 

The  exercise  of  this  jurisdiction  is  also  refused  where  a  person  covenant- 
ed to  do  or  not  to  do  a  particular  act,  agrees  to  pay  a  certain  sum  by  way 
of  liquidated,  ascertained,  or  agreed  damages.  1  Mad.  33.  2  Alk.  194. 
6  Br.  P.  C.  417,  470.  6  Vez.  818.  For  the  sum  so  fixed  upon  is  not  re- 
garded as  a  penalty,  but  as  an  estimate  made  by  the  parties  themselves  of 
the  injury  that  one  will  receive  if  the  covenant  be  broken  by  the  other. 
See  2  Evans'  Pothier,  86,  &c.  a  suggestion  as  to  the  proper  form  of  a  con- 
tract where  the  sum  fixed  is  intended  as  and  for  stipulated  damages. 

Lastly,  it  has  been  said  that  equity  never  interferes  to  relieve  against  le- 
gislative penalties ;  as  where  in  an  incorporation  it  is  provided  that  a  party 
shall  forfeit  his  share  or  shares,  if  he  fails  to  pay  up  his  quotas  after  notice. 
See  1  Mad.  38.  For  this  principle  he  cites  a  case  without  the  name  of  the 
reporter.  The  case  cited  is  reported  in  13  Vez.  4'2S,  and  the  court  refused 
to  interfere  upon  the  ground  that  in  such  transactions  it  is  essential  that  the 
company  should  have  the  power  of  imposing  and  enforcing  the  strictest 
regulations,  and  that  the  greatest  pains  should  be  taken  by  the  members  of 
the  company  to  inform  themselves  of  its  concerns-  otherwise  all  such  com- 
panies would  be  ruined  by  suits  without  number  with  their  own  members. 

The  subject  of  distinction  between  cases  of  conditions  precedent  and 
conditions  subsequent,  has  been  already  cursorily  treated  under  the  head  of 
accident. 

IV.  OF  "ACCOUNTS." 

The  jurisdiction  of  equity  in  matters  of  account  is  among  the  most  com-i 
prehensive  of  those  which  it  has  assumed.  Yet  we  are  not  to  presume  thafi 
in  every  case  of  account  a  court  of  chancery  has  jurisdiction :  for  though 
I  run  up  an  account  at  a  store,  my  merchant  cannot  as  a  matter  of  course 
sue  me  before  that  tribunal  :  to  entitle  him  to  proceed  there,  he  must  shew 
some  other  ground  of  interference,  such  as  fraud- — the  necessity  of  discov- 
ery— complication  in  the  accounts,  or  such  like.  9  Vez.  473.  "  It  is  not, 
indeed,"  says  Lord  Erskine,  "  an  objection  to  a  bill  for  an  account  that  in- 
debitatus assumpsit  will  lie,"  for  in  many  cases  the  jurisdiction  of  the  courts 
is  herein  concurrent.  Nor  is  it  true  that  an  account  may  be  decreed  in 
every  case  where  an  action  of  indtbitaius  assumpsit  lies;  "but  where  the 
subject  cannot  be  so  well  investigated  in  that  action,  the  court  of  chancery 
exercises  a  sound  discretion  in  decreeing  an  account.  If  it  appears  it  could 
not  be  tried  without  great  difficulty,  and  the  verdict  could  not,  from  the  na- 
ture of  the  case,  be  equally  satisfactory  with  the  proceedings  under  a  de- 
cree, an  account  will  be  decreed."  Pursuing  this  decision,  the  principle  of 
interference  may  be  assumed  to  be  "  either  that  courts  of  law  cannot  give  a 
remedy,  or  cannot  give  so  complete  a  remedy  as  equity."  2  Rand.  452. 
And  this  is  doubtless  the  case  even  where  there  are  not  mutual  demands, 
notwithstanding  the  terms  in  which  Lord  Eldon  and  others  have  spoken  of 
this  jurisdiction.  "There  must,"  says  Lord  Eldon,  "be  mutual  demands 
forming  the  ground  of  the  bill.  The  case  of  dower  and  a  steward  are  ex- 
VOL.  2—52 


410  ACCOUNTS.  [  BOOK  3. 

ceptions.  If  the  subject  is  matter  of  set  off  at  law,  and  capable  of  proof, 
a  bill  will  not  lie.  There  is  hardly  a  case  of  set  off  in  which  a  bill  might 
not  be  sustained  if  this  may."  6  Vez.  1.36.  "If,"  says  chief  baron  Eyre, 
"  the  subject  of  the  bill  be  only  one  matter,  it  will  not  give  jurisdiction  ;  but 
where  there  has  been  a  series  of  transactions  on  one  side,  and  payments  on 
the  other,  I  am  not  satisfied  that  it  is  not  matter  of  account;"  and  chancel- 
lor Kent  remarks  in  echoing  these  authorities,  that  "  to  sustain  a  bill  for  an 
account  there  must  be  mutual  demands,  and  not  merely  payments  by  way  of 
set  off.  A  single  matter  cannot  be  made  the  subject  of  an  account.  There 
must  be  a  series  of  transactions  on  one  side  and  payments  on  the  other." 
2  John.  1G9.  These  cases  are  again  collated  and  approved,  2  Ran.  451. 
I  have  been  thus  particular  in  stating  them  to  prevent  misapprehension  by 
laying  the  decisions  explicitly  before  you.  They  establish  as  a  general  rule, 
1.  That  there  must  be  mutual  demands,  and  that  a  demand  on  one  side, 
and  mere  payments  on  the  other,  will  not  constitute  mutual  demands. 
But,  2.  Although  there  are  not  mutual  demands,  yet  if  there  is  fraud,  or 
no  remedy  at  law,  or  only  an  incomplete  remedy,  equity  will  interfere, 
though  in  such  cases  it  exercises  a  sound  discretion,  and  will  not  take  ju- 
risdiction upon  light  or  frivolous  pretexts.  See  1  Wash.  145.  I  Sch.  & 
Lefroy,  309. 

Notwithstanding  these  general  principles,  however,  there  are  a  variety  of 
cases,  in  which  the  jurisdiction  is  settled  by  their  very  nature,  and  does  not 
depend  on  the  mutuality  of  the  demands.  Such  as  the  complicated  deal- 
ings of  a  landlord  and  tenant  ;  1  Sch.  &  Lef  309;  the  account  of  rents 
and  profits  in  cases  of  dower;  G  Vez.  136;  (whence  flows  even  the  juris- 
diction to  assign  the  dower  itself;)  the  accounts  of  a  steward,  "  the  nature 
of  whose  dealing  is  that  money  is  paid  in  confidence  without  vouchers,  em- 
bracing a  great  variety  of  accounts  with  tenants,  and  in  which  nine  times 
in  ten  it  is  impossible  that  justice  can  be  done  at  law  to  the  steward."  6 
Vez.  136.  And  such,  I  conceive,  is  also  the  doctrine  with  respect  to  fac- 
tors, executors,  trustees,  and  the  like,  for  the  nature  of  these  transactions 
is  either  characterized  by  trust  and  confidence,  or  they  are  so  generally  com- 
plicated and  diflicult,  and  depend  so  much  upon  discovery,  that  the  juris- 
diction, I  apprehend,  is  entertained  whether  the  accounts  eventually  do  or 
do  not  fall  within  the  description  above  mentioned.  In  like  manner  in  the 
case  of  partnership,  equity  has  exclusive  jurisdiction,  for  courts  of  law  con- 
sidering partners  as  but  one  person,  will  not'  interfere  between  them.  3 
Bos.  &  Pull.  289.  Watson  on  Part.  77.  So,  too,  in  the  case  of  the  ac- 
counts of  profits  of  water  works,  iron  works,  and  such  like,  equity  lends  a 
ready  ear,  for  though  the  parties'  interest  in  them  may  be  a  legal  estate,  no 
one  proprietor  receives  the  profits,  but  the  officers  of  the  company  do  so; 
and  where  an  estate  is  under  such  management  it  would  be  absurd  to  send' 
the  case  to  law.  3  Atk.  33S.  So,  too,  a  bill  for  an  account  of  the  proceeds- 
of  mines  is  readily  entertained,  (IP.  Wms.  406,)  for  in  the  nature  of  the- 
affair  it  must  depend  on  discovery ;  and  in  cases  of  elegit,  as  we  have  seen, 
the  debtor  may  go  into  equity  uniler  circumstances  to  adjust  the  account 
of  actual  profits,  which  a  court  of  law  will  not  do.  See  book  2.  3  Atk. 
517.     2  Atk.  362. 

With  respect  to  an  account  of  rents  and  profits  of  estates  which  is  order- 
ed in  equity,  the  rule  appears  to  be  that  when  a  man  brings  his  bill  in  equity 
in  respect  of  a  trust  against  a  person  not  affected  with  the  trust,  or  upon  a 
mere  equitable  title,  and  recovers  the  estate,  equity,  by  analogy  to  the  op- 
eration of  the  statute  of  limitations  at  law,  will  in  general  allow  no  more 
than  five  years'  mesne  profits  ;  but  in  all  cases  of  recoveries  against  trus- 
tees or  persons  affected  with  a  trust,  and  in"  cases  of  bills  against  persons 
who  have  entered  on  an  infant's  estate,  (who  are  always  considered  as  en- 


CHAP.  21.]  ACCOUNTS.  411 

tering  as  baliffs  or  guardians  of  the  infant,  1  Mad.  74,)  the  account  is  not 
confined  to  the  time  of  five  years  by  analogy  to  the  statute.  Under  spe- 
cial circumstances,  too,  the  plaintiff  is  only  allowed  an  account  of  rents 
and  profits  from  the  time  of  filing  the  bill.  As  where  the  defendant  had 
no  notice  of  the  plaintiff's  title :  or  the  plaintiff  has  been  guilty  of  laches 
in  not  asserting  his  title  sooner  ;  or  has  lain  by  and  permitted  the  defendant 
to  proceed  to  take  the  profits  as  liis  own.     1  Wash.  336.     1  Rand.  6. 

Connected  with  this  subject  of  rents  and  profits,  is  that  of  a  claim  for 
permanent  improvements.  For  if  A  recovers  against  B  a  tract  of  land,  and 
demands  (hat  B  shall  pay  the  rents  and  profits  while  he  held  it,  B  on  his 
part  may  set  up  a  claim  to  an  allowance  for  any  permanent  improvements 
he  has  made  upon  the  land.  How  far  such  claim  is  allowable  it  is  proper 
here  to  state. 

At  common  law,  he  who  intruded  upon  the  land  of  another,  and  built  and 
improved  it  of  his  own  mere  motion,  could  recover  nothing  from  the  red 
owner  for  the  benefit  thus  conferred,  for  it  was  his  own  folly  or  wrong  to 
spend  his  own  money  in  improving  another  man's  land.  On  the  other 
hand,  it  is  true  at  common  law  the  real  owner  did  not,  in  a  writ  of  right, 
recover  damages,  or  the  value  of  the  rents  and  profits  while  the  tenant  held 
the  possession.  But  after  damages  were  allowed  by  statute,  so  as  to  cover 
the  rents  and  profits,  the  tenant  was  allowed  to  recoup  against  them  the  va- 
lue of  the  improvements  put  upon  the  estate  by  himself;  for  the  difference 
between  the  rents  and  profits  on  the  one  hand,  and  the  benefits  received 
by  improvements  on  the  other,  obviously  constituted  the  real  damages  sus- 
tained. But  if  the  value  of  the  improvements  exceeded  the  rents  and  pro- 
fits, he  had  no  remedy  for  the  excess,  for  it  was  his  own  folly  to  expend  in 
that  way  more  than  the  value  of  the  rents  and  profits.  2  Rand.  13,  141. 
Sug.  525.  The  old  case  of  Hite  vs.  Fairfax  was  decided  on  this  ground. 
And  such  seems  at  this  day  to  be  the  general  principle  of  the  subject.  To 
this  general  principle,  however,  there  are  exceptions :  for  the  same  reason 
which  induces  a  court  of  equity  to  refuse  to  allow  to  a  complainant  the 
rents  and  profits  beyond  the  time  of  filing  his  bill,  will  induce  it  to  allow 
permanent  improvements  made  by  the  defendant.  "  For  a  party  in  posses- 
sion may  claim  such  compensation  if  the  owner  is  guilty  of  fraud  in  per- 
mitting such  improvements  with  full  knowledge  of  his  claim,  and  without 
giving  notice  of  it  to  the  possessor,  or  is  guilty  of  gross  laches  in  asserting 
his  claim  after  he  is  apprised  of  it."  2  Rand.  14.  1  W.  336.  12  Vez. 
85.  7  Vez.  231.  And  this  claim,  it  seems,  may  be  asserted  not  only  where 
the  possessor  is  a  defendant  in  equity,  but  it  may  be  the  foundation  of  a 
bill  for  relief  afier  he  has  been  ousted  by  ejectment.  See  1  Rand.  58. 
Sug.  526.  Yet  if,  on  the  other  hand,  the  possessor  has  acted  fraudulently, 
or  wilfully  proceeds  to  make  improvements  afier  full  notice  of  liis  adversa- 
■ry's  claim,  and  with  a  consciousness  of  the  defect  of  his  own,  he  debars 
'himself  of  any  relief  in  equity,  and  must  set  down  under  a  loss  occasioned 
by  his  own  folly.  1  Rand.  58.  2  Rand.  13.  2  John.  602.  If  the  rule 
were  otherwise,  then  any  man  might  take  possession  of  anotlier's  estate 
and  improve  to  any  extent,  and  thus  acquire  real  security  for  the  value  of 
the  improvements  ;  and  it  would  certainly,  as  Lord  Clare  remarked,  fully 
justify  a  proposition  once  stated  at  the  bar  of  the  court  of  chancery  in  Ire- 
land, "  that  it  was  a  common  equity  to  improve  the  right  owner  out  of  the 
possession  of  his  estate."  Sug.  526.  This  seems  to  have  been  considered 
the  practical  operation  of  what  are  commonly  called  the  occupying  claim- 
ant laws  of  Kentucky,  which  were  accordingly  pronounced  invalid  by  the 
supreme  court  of  the  United  States,  and  have  formed  the  subject  of  much 
interesting  and  animated  discussions  between  the  commonwealth  of  Vir- 
ginia and  the  state  of  Kentucky. 


412  ACCOUNTS.  [liooK  3. 

But  though,  as  wo  iiave  seen,  a  court  of  equity  gives  relief  in  matters  of 
account,  vet  very  serious  obstacles  are  opposed  to  ihat  relief,  where  the  ac- 
counts iiave  been  once  seltled  and  adjusted,  or  where  they  have  been  of 
Ion''  standing.  This  brings  us  to  the  subjects  of  stated  accounts  and  the 
statute  of  limitations. 

We  have  elsewhere  touched  upon  the  character  of  stated  accounts,  and 
upon  the  question  what  are  considered  as  such.  But  it  is  material  to  add 
here,  that  where  fraud  appears  in  a  stated  account,  the  whole  will  be  open- 
ed, though  of  a  groat  many  years'  standing  ;  2  Atk.  119;  and  even  an  ac- 
count sculed  by  arbitrators  is  not  conclusive  if  there  is  a  plain  error  to  be 
pointed  out.  3  Atk.  ooO.  Yet  such  is  the  weight  attributed,  and  justly 
attributed,  to  settled  accounts,  that  the  court  always  retjuires  a  specification 
of  the  errors  alleged.  For  it  were  useless,  nay  more  than  useless,  to  settle 
an  account,  if,  at  remote  periods,  courts  were  too  readily  inclined  to  rip  up 
settlements  altogether,  and  call  upon  the  party  to  establish  anew  what  he 
has  already  once  settled  to  the  satisfaction  of  his  adversary.  Many,  per- 
haps most  men,  upon  settling  accounts,  destroy,  or  at  least  become  careless 
of  their  vouchers,  so  that  a  future  settlement  would  be  much  more  difficult 
than  the  first.  Hence,  although  on  a  bill  for  an  account,  where  there  has 
nexer  been  a  settlement,  both  parties  come  before  the  court  with  equal  dif- 
ficulties, yet  where  the  bill  is  to  correct  an  account  which  has  once  been 
adjusted,  the  complainant  is  placed  under  two  disadvantages.  1.  He  must 
by  his  bill  state  certain  specific  errors  in  the  settled  account ;  since  the  de- 
fendant can  never  fairly  defend  himself,  if,  under  a  general  charge  not  spe- 
cifying any  error,  the  plaintiff  may  come  at  the  hearing  with  proof  of  er- 
rors of  which  the  defendant  was  not  particularly  warned.  9  Vez.  266.  2 
.Tohn.  217.  1  Mad.  82.  And  this  requisition  is  the  more  proper,  since 
upon  a  general  charge  of  error  throughout  the  account,  the  parties  would 
be  exposed  to  the  ruinous  expense  of  maintaining  the  whole,  when  in  the 
event  it  might  turn  out  that  the  plaintiff'  really  controverted  only  a  single 
item.  Moreover,  upon  principle  there  should  be  error  enough  shewn  on 
the  face  of  the  bill  to  entitle  the  party  to  relief;  1  Mad.  82;  and  unless  he 
can  specify  it,  there  can  be  no  reason  to  presume  he  can  prove  it,  and, 
therefore,  his  bill  should  be  dismissed  ;  for  the  only  equity  of  a  bill  which 
should  unravel  a  settled  account,  is  that  there  has  been  some  mistake  or 
error  in  the  settlement.  If  there  has  been,  the  party  must  know  what  it  is  : 
and  if  he  knows  what  it  is,  his  adversary  should  be  informed  of  it  that  he 
may  be  prepared  to  contest  it.  He  who  complains  must  therefore  surcharge 
or  falsify  :  i.  e.  he  must  shew  himself  entitled  to  additional  credit,  or  that 
the  charges  against  him  are,  in  amount  or  otherwise,  false  and  erroneous.* 

The  second  disadvantage  that  he  encounters  is,  that  he  must  prove  what 
he  has  stated.  The  onus  proLcindi  always  rests  on  the  jiarty  who  surcharges 
or  falsifies  ;  for  having  once  admitted  the  justness  of  the  account  by  the 
fiettlcmcnt,  the  court  takes  it  as  established  until  disproved.  If  the  plaintiff 
can  sliew  an  omission  for  which  he  should  have  credit,  that  is  a  surcharge : 
if  he  can  siiow  a  wrong  chnrge  against  him,  that  is  a  fiilsification  ;  but  that 
must  b(!  by  proof  on  iiis  side.     1  Mad.  63.     7  .lohn.  69.     2  John.  217. 

Whore,  h<»wevcr,  a  bill  is  filed  for  an  account  generally,  and  the  defen- 
dant pleads,  as  ho  may,  in  bar  of  the  demand,  a  settled  account,  of  which, 
however,  no  proof  was  offered,  liberty  was,  iipon  a  reference  to  a  master, 
given  to  the  r  oiiiplairiant  to  surcharge  and  falsify  before  him,  if  a  settled 
account  should  apjioar.      11  ^'e■/.  579. 

As  to  the  statute  of  limitations,!  it  may  bo  remarked,  that  in  equity  it  is 

•  Fn  a  hill  lo  siirclnren  niid  rilpify  nn  rxopiiior'?  ncooiint«,  ilie  accoiiiiis  RJioiiUl  not  lie  referred,  iin- 
W»«s  ilicrf  1)8  evidcnrj!  lo  giirrli;irce  «r  (alpifj ,  or  unlcEB  tointtliiiig  impi  oper  nppears  upon  llieir  face. 
4  Miin.:)r.9.    .Sr-flal(W):jLei£li,  J18,407. 

t  See  I'oft,  410,  in  noiei. 


CHAP.  21.]  ACCOUNTS.  413 

considered  as  much  a  bar,  as  in  a  court  of  law,  to  a  demand,  for  the  reco- 
very of  whicli  tfie  jurisdictions  of  the  two  courts  are  concurrent.  For  it 
would  be  absurd  that  for  tlie  same  subject  there  should  be  different  and  con- 
flicting rules  in  the  two  tribunals.  But  as  it  respects  mere  equitable  de- 
mands, length  of  time  cannot  be  set  up  as  an  absolute  bar;  for  in  relation 
to  them,  length  of  time  operates  as  a  bar,  not  ex  jure,  but  as  a  fact  shew- 
ing acquiescence,  and  furnisliing  evidence  that  the  claim  has  been  adjusted. 
In  this  view  it  always  is  urged  with  great  force  at  the  hearing  :  for  it  is  a 
rule  founded  on  principles  of  public  policy,  that  parties  shall  not,  by  ne- 
glecting to  bring  forward  their  demands,  put  others  to  inconvenience,  or 
involve  them  in  insuperable  difliculties.  Every  presumption,  therefore,  that 
can  fairly  be  made,  will  be  made  against  a  stale  demand.  1  Mad.  79.  1 
Mun.  150.  4  John.  21  (i,  287, '294.  G  John. -369.  See  4  Rand.  454.  1 
Leigh,  457.  The  very  forbearance  to  make  a  demand  is  evidence  of  satis- 
faction. Equity  always  refuses  its  aid  to  stale  demands,  where  the  party 
has  slept  upon  his  right,  and  his  adversary  may  have  lost  his  evidence.  No- 
thing can  call  forth  that  court  into  activity,  but  conscience,  good  faith,  and 
reasonabl-e  diligence.  Where  these  are  wanting,  it  is  passive.  Laches  and 
neglect  it  always  discourages,  and  it  has  always  since  the  establishment  of 
its  jurisdiction  had  its  limitation  to  suits.  Amb.  645.  3  Br.  C.  C.  t>39,  in 
note.  To  decree,  says  Lord  Hardwicke,  an  account  against  an  executor 
after  the  plaintitf's  testator  had  been  dead  twenty-seven  years,  and  the  de- 
fendant's ten  years,  and  no  demand  in  seventeen  years,  would  be  one  of 
the  worst  precedents  for  disturbing  the  peace  of  families.  3  Atk.  107. 
AVhere,  therefore,  a  party  has  lain  by  for  a  great  length  of  time,  and  suffer- 
ed an  estate  to  be  distributed,  he  cannot  insist  on  an  account.  4  Br.  C.  C. 
257.  1  Mad.  80.  0  John.  369.  See  also  the  provisions  as  to  executors; 
act  of  February  16,  1825. 

But  though  equity  thus  recognizes  the  statute  of  limitations  in  its  appli- 
cation to  cases  of  a  legal  character,  and  gives  great  weight  to  length  of  time 
even  in  those  which  are  merely  equitable,  yet  it  is  one  of  the  maxims  of  the 
court  that  it  does  not  run  against  a  trust  or  a  fraud.  See  1  Mad.  75.  Willes, 
404,  405.  4  Mun.  222.  3  John.  190,  390.  10  Vez.  453.  But  this  doc- 
trine is  to  be  received  with  some  important  modifications  and  explanations. 

1st.  As  to  the  statute  running  against  a  trust. 

Here,  in  the  first  place,  we  must  observe  that  the  trusts  which  are  regard- 
ed as  unaffected  by  the  statute,  are  those  which  are  the  creatures  of  a  court 
of  equity,  of  which  the  common  law  takes  no  notice,  and  over  which  courts 
of  equity  have  an  original,  exclusive,  and  peculiar  jurisdiction.  7  John.  111. 
20  John.  R.  375.  The  rule  does  not  extend  to  those  numerous  trusts  re- 
cognized by  the  courts  of  common  law  as  well  as  equity,  and  with  respect 
to  which  there  would  be  two  rules,  if  they  were  in  equity  held  not  to  be  af- 
fected by  the  statute.  Such  are  the  rights  and  duties  growing  out  of  the 
various  species  of  bailment:  as  hiring,  borrowing,  pledging,  &.c.,  all  which 
are  considered  as  cases  of  express  trust,  as  well  at  law  as  in  equity.  Such 
too  is  every  case  of  money  delivered  to  be  paid  over  to  another;  so  that  if 
in  the  rule  in  question  the  term  trust  was  to  be  understood  in  its  comprehen- 
sive sense,  the  rule  of  equity,  instead  of  following  the  law,  would  well  nigh 
annihilate  the  statute.  Whereas,  wherever  there  is  a  legal  and  equitable 
remedy  in  respect  to  the  same  subject-matter,  the  latter  is  under  the  con- 
trol of  the  same  statute  bar  with  the  former.  See  Willes,  404,  405.  6 
John.  289.  7  John.  118,  121.  2  Sch.  &  Lef  607.  2  Atk.  610.  5  Vez. 
749,  750.     17  Vezey,  87. 

In  the  second  place  we  must  remark,  that  the  rule  which  excepts  trusts 
from  the  operation  of  the  statute  of  limitations,  does  not  embrace  all  con- 
structive trusts,  but  only  direct  and  express  trusts  between  cestui' s  que  trusts 


414  ACCOUNTS.  [dook3. 

•and  their  triisiees.  Thus  if  lands  are  conveyed  to  A  in  trust  to  pay  over 
the  rents  and  profits  to  B  and  his  heirs,  this  is  a  direct  trust.  But  if  A  sells 
the  trust  subject  to  C,  here  C  is  constructively  a  trustee  if  he  had  notice  of 
the  trust,  but  he  is  nevertheless  not  debarred  from  the  protection  of  the 
statute.  '  For,  though  he  is  constructively  a  trustee  for  the  purposes  of  the 
remedy,  yet  he  holdl  adversely  to  the  rights  of  cestui  que  trust,  and  not  un- 
der him  as  the  express  trustee  did.  He  therefore  may  set  up  an  adverse 
possession  for  twenty  years  against  the  cestui  que  trust ;  but  the  express 
trustee  never  could,  for  he  is  under  the  cestui  que  trust — -his  possession  is 
not  adverse,  but  it  is  the  possession  of  the  cestui  que  trust  himself:  and  out 
of  such  a  possession  the  bar  of  the  statute  never  could  grow.  3  John.  C. 
C.  190.  7  John.  123.  17  Vez.  87.  10  Wheat.  Elmendorf  vs.  Taylor. 
4  Ran.  497. 

In  the  third  place  we  must  observe,  that  even  in  the  case  of  express  trusts 
the  statute  is  a  bar  unless  the  trust  is  a  continuing  and  acknowledged  trust. 
So  long  indeed  as  the  trust  is  a  subsisting  one,  and  admitted  by  the  acts  or 
declarations  of  the  parties,  no  doubt  the  statute  does  not  affect  it;  but 
when  such  transactions  take  place  between  cestui  que  trust  and  trustee,  as 
.in  the  case  of  tenants  in  common  would  amount  to  an  ouster,  as  if  he  de- 
;nies  his  right,  and  the  possession  becomes  adverse,  it  seems  to  be  the  bet- 
ter opinion  that  the  statute  will  apply.     7  John.  124.     1  Ball  &  Beatty,  156. 

It  is  either  under  this  or  the  second  exception  to  the  application  of  the 
-rule,  that  the  case  of  a  party  comes  v/ho  has  entered  upon  an  infant's  es- 
'tate  and  received  the  rents  and  profits.  He  is  considered  indeed  as  a  trus- 
tee, but  unless  the  infant  sues  within  five  years  after  coming  of  age,  he  will 
he  debarred  by  the  statute.  Prec.  in  Ch.  518.  7  John.  113.  In  this  last 
case  this  whole  subject  is  ably  investigated,  and  the  English  cases  stated 
-and  examined. 

I  will  observe,  in  Vne  fourth  place,  that  the  rule  in  question  applies  only 
as  between  the  cestui  que  trust  and  his  trustee,  the  latter  being  excluded  by 
;it  from  the  protection  of  the  statute.  But  it  has  no  application  as  between 
'Cestui  que  trust  and  his  trustee  on  the  one  hand,  and  third  persons  holding 
adverse  to  them  both  on  the  other  ;  or  in  the  words  of  the  books,  it  holds 
not  unless  the  fiduciary  character  of  the  possession  subsist  between  the 
plaintiff  and  defendant.  And  the  reason  is  obvious,  whatever  may  be  the 
foundation  of  the  rule  in  equity.  Is  it  that  the  conscience  of  the  party  is 
affected?  If  so,  it  cannot  apply  to  a  third  person  whose  conscience  has 
never  been  bound  by  the  trust.  Is  it  that  there  can  be  no  adverse  posses- 
sion, as  the  possession  of  the  one  is  the  possession  of  the  other?  If  so,  it 
cannot  apply  to  a  third  person  holding  adverse  to  both.  In  any  view,  there- 
fore, the  rule  must  be  inapplicable  as  between  the  trustee  and  third  persons 
not  parties  to  the  trust,  and  not  claiming  under  either  cestui  que  trust  or  his 
trustee.  Such  third  person  therefore  cannot,  as  plaintiff,  set  up  the  fiduci- 
ary character  of  the  defendant  in  relation  to  others,  as  a  bar  to  the  opera- 
tion of  the  act.     4  H.  &  M.  139. 

Fifthly,  it  is  proper  here  to  advert  to  a  question  of  interest  which  has 
been  the  subject  of  much  discussion.  It  is  as  to  the  effect  of  a  devise 
(creating  a  trust  for  the  payment  of  debts)  in  reviving  and  keeping  alive  de- 
mands which  would  otherwise  fall  v\ithin  the  bar  of  the  statute. 

I  shall  not  liere  enter  again  on  the  question  elsewhere  touched  on,  (Book 
2,  Executors,)  as  to  what  amounts  to  a  charge  of  the  realty  for  the  payment 
of  debts;  contenting  myself  with  referring  to  2  John.  C.  C.  614,  where  the 
subject  is  examined  ;  but  I  shall  confine  myself  rather  to  the  effect  of  such 
a  devise,  where  the  intent  is  ascertained. 

And  here  the  student  must  be  informed  that  the  notion  of  debts  being  re- 
vived and  kept  alive  by  such  a  devise,  arises  from  two  considerations  ;  first, 


CHAP.  21.]  ACCOUiNTS.  415 

the  supposed  acknowledgment  or  promise  to  pay,  which  such  a  will  con- 
tains, and  which  is  supposed  to  give  new  life  to  the  demand;  second,  the 
creation  of  a  trust  against  which  the  statute  cannot  run,  and  which  there- 
fore was  supposed  to  keep  alive  indefinitely  what  was  thus  re-animated. 
As  to  the  first  of  these  matters,  after  no  little  vacillation  in  the  decision  of 
the  courts,  they  seem  at  length  to  have  settled  down  upon  these  principles  : 
that  a  new  promise  to  pay  takes  a  debt  out  of  the  statute  :  and  that  an  ac- 
knowleds^ment  that  a  debt  is  still  subsisting  and  unpaid,  will  also  be  sufficient' 
evidence  for  a  jury  or  a  court  to  presume  a  new  pro  raise,  provided  such  pre- 
sumption is  not  repelled  by  the  terms  in  which  the  acknowledgment  is 
qualified.  It  is  the  nev/  promise,  and  not  the  mere  acknowledgment,  that 
revives  the  debt  and  takes  it  out  of  the  statute.  See  notes  on  assumpsit, 
Book  3.  See,  also,  6  John.  290.  As  to  the  second  matter  above  stated,  it 
may  be  observed,  that  as  the  creation  of  a  trust  is  the  basis  of  the  principle, 
it  has  no  application  except  where  there  is  a  charge  upon  the  realty  ;  for  as 
the  personalty  is  the  legal  fund  for  payment  of  debts,  no  testator  can  create 
in  it  any  trust  for  such  a  purpose.  Where,  therefore,  the  charge  does  not 
aff'ect  the  realty,  the  bar  of  the  statute  is  in  no  wise  affected.  3  H.  8c  M. 
106.     6Mun.  450. 

Admitting,  however,  that  the  real  estate  is  charged,  the  questions  which 
present  themselves  are  as  to  the  effect  upon  debts  which  were  already  bar- 
red at  the  time  of  the  testator's  death,  and  as  to  its  effect  on  those  which 
were  not  so  barred.  There  is  no  question  that  a  devise  of  lands  in  trust 
for  payment  of  debts  was  formerly  supposed  to  include  debts  upon  whicfe 
the  statute  of  limitations  had  closed.  See  2  Vern.  141.  2  P.  Wms.  373. 
Prec.  in  Ch.  -385.  3  P.  Wms.  89.  Cow.  548,  cited  6  John.  293,  where 
this  subject  is  fully  discussed,  and  which  I  have,  therefore,  freely  made  use 
of.  But  this  doctrine  has  often  been  questioned,  (3  Atk.  107.  Amb.  231,) 
and  has  of  late  years  been  by  no  means  considered  as  established.  The- 
student  in  his  researches  will  perceive  that  after  having  been  the  sub- 
ject of  remark  on  former  occasions,  (see  2  H.  &.  M.  124.  3  H.  &  M.  89,) 
and  after  the  former  adjudications  had  been  strongly  countenanced  by  the 
court  of  appeals,  and  decisively  approved  by  one  of  the  judges,  the  ques- 
tion has  been,  nevertheless,  waived  in  a  subsequent  case.  6  Mun.  450. 
In  other  courts,  however,  the  old  doctrines  have  not  been  so  well  received. 
Lord  Redesdale  drew  a  distinction  between  those  debts  which  were  barred 
at  the  time  of  the  testator's  death  and  those  which  were  not.  The  former 
he  considered  as  not  being  revived,  but  the  latter  he  regarded  as  protected^ 
By  the  trust  from  the  future  operations  of  the  statute.  1  Sch.  &  Lef.  107. 
Lord  Eldon,  indeed,  in  a  subsequent  case  (15Vez.  479,)  did  not  undertake 
to  overrule  the  old  authorities  ;  but  his  doubts  are  more  than  balanced  by 
the  reprobation  of  Lord  Hardwicke,  Lord  Kcnyon,  and  Lord  Alvanley,  and' 
"  last  but  not  least,"  by  that  of  the  distinguished  Sir  S.  Romily.  After- 
wards, in  the  case  of  Burke  vs.  Jones,  however,  (2  Vez.  &  Beame,  275,) 
the  cases  were  all  accurately  reviewed  by  the  vice  chancellor,  who  pro- 
nounced a  decree  against  the  doctrine  of  the  old  cases  which  considered  a 
debt  barred  before  the  testator's  death,  as  revived  by  the  trust.  In  this  de- 
cision the  distinguished  chancellor  Kent  concurs,  and  I  presume  it  will 
probably  be  regarded  as  the  law  of  the  subject.     See  6  John.  293. 

It  will  be  observed,  however,  that  it  is  no  where  denied  that  a  will  may 
be  so  worded  as  to  revive  a  debt  already  barred.  The  acknowledgement 
of  a  particular  subsisting  debt,  and  a  direction  by  will  to  pay  it,  would  re- 
vive the  debt  though  barred  by  the  statute,  whether  there  be  a  trust  or  not. 
But  it  was  surely  going  very  far  to  say,  that  because  a  testator  honestly  pro- 
vided for  the  payment  of  his  just  debts,  such  provision  should  be  construed 
into  an  acknowledgment  that  a  stale  claim  was  really  unpaidi  which  from 


416  ACCOUNTS.  [BOOK  3. 

its  antiquity  the  law  would  presume  to  have  been  discharged,  and  this  even 
thou'di  it  be  neither  mentioned  or  remotely  alluded  to  in  the  devise  itself. 

From  what  has  been  said  it  will  be  obvious  that  though  the  trust  for  pay- 
ment of  debts  does  not  revive  those  which  were  barred  at  the  testator's 
death,  unless  they  are  distinctly  pointed  out  or  recognized,  it  has  the  effect 
of  preventing  a  debt  not  barred  at  the  time  of  his  death,  from  being  barred 
by  the  running  of  the  statute  subsequent  to  that  event,  6  John.  294.  1 
Sch.  &  Lef.  1U7. 

•2.  We  purposed,  secondly,  to  consider  the  principle  that  the  statute  of 
limitations  will  not  run  against  a  fraud.  It  is  an  admitted  doctrine  of  equi- 
ty, and  was  strongly  expressed  by  Lord  Erskine,  when  he  observed  that  no 
length  of  time  can  prevent  the  unkennelling  of  frauc.  Hence,  where  a 
fraud  appears  even  in  a  stated  account,  the  whole  will  be  opened,  though 
of  a  great  many  years'  standing.  2  Atk.  111).  But  the  general  proposi- 
tion admits  of  considerable  qualification  :  for  where  the  fraud  has  been 
long  since  committed,  the  bill  ought  to  allege  that  it  was  discovered  within 
five  years  :  and  a  plea  of  the  statute  is  good  if  the  defendant  alleges  in  his 
plea,  and  can  shew  that  the  fraud,  if  any,  was  not  discovered  within  that 
time.  3  P.  Wms.  143.  1  Br.  P.  C.  455.  3  P.  Wms.  143.  2  Sch.  &  Lef. 
007.  Milford's  Plead.  212.*  But  length  of  time  always  forms  a  strong 
objection  where  it  can  be  used  to  shew  acquiescence,  or  a  consciousness 
tliat  the  party  is  without  right :  14  Vez.  467  :  and  though  the  complainant 
in  equity  may  dismiss  one  bill  and  bring  another,  to  which  the  former  is  no 
bar,  yet  such  a  course  of  conduct  forms  a  strong  objection  to  relief.  See  1 
P.  Wms.  723.  14  Vez.  231,  in  which  last  case  the  master  of  the  rolls 
seemed  to  doubt  whether  the  former  suit  might  not  even  be  pleaded  in  bar. 

Having  thus  disposed  of  the  question  as  to  the  effect  of  trusts  and  frauds 
on  the  operation  of  the  statute,  1  proceed  to  remark,  that  even  in  cases  of 
mere  equitable  demand,  equity  adopts  the  statute  of  limitations  generally 
in  strict  analogy  to  the  law.  7  John.  C.  C.  90,  113.  Thus,  by  analogy  to 
the  limitation  in  ejectment,  (3  John.  129,  or  as  Judge  Pendleton  tells  us 
in  1  Wash.  18,  by  analogy  to  the  doctrine  of- presumption  of  payment  of  a 
bond  after  twenty  years,)  the  same  period  has  been  adopted  as  the  limita- 
tion in  redemptions  and  foreclosures.  So  by  analogy  to  the  action  of  tres- 
pass for  mesne  profits,  where  the  demand  is  even  equitable,  the  account  of 
rents  is  never  carried  beyond  five  years.  10  Vez.  466,  469.  6  Vez.  199. 
5  Vez.  749,  750.  1  Atk.  493.  7  John.  117,  118,  121.  3  Bro.  639,  note. 
1  Sch.  &  Lef.  413.     2  Sch.  &  Lef.  607.     See  also  2  Vez.  jr.  ll.t 

"  This  ap])lication  of  the  statute  by  analogy,"  says  chancellor  Kent, 
"  cannot  well  be  made  to  cases  of  those  peculiar  trusts  which  are  the  crea- 
tures of  equity,  for  there  is  no  ground  for  comparison,"  (i.  e.  nothing  at  law 
with  which  to  compare  them.)  7  John.  120.  I  rather  think  they  are  analo- 
gous to  those  cases  at  law  where  one  party  being  in  possession  under  the 
other,  can  never  set  up  the  statute  against  him,  since  to  make  the  statute  a 
bar,  the  possession  must  be  adverse.     He  goes  on  to  say  "that  where  the 

'Soatliiw,  Breen?.  Ilolberk.Doui,'.  G5t.  See  also  9  C.  L.  U.  47.  6  C.  L.  R.  25.  5  Mason,  143. 
20  John.  33,  273.  5  Weiidel,  30.  3  Mass.  201.  1  Pickeriug,  435.  4  Yeates,  109.  Starkie,  part  4, 
'<iii,yM.    4  Brown's  I'iir.  Crt.  163. 

Tlic  case  ol  Callia  rs.  Waddy,  2  Muii.  wliidi  seems  in  conflict  witli  tlie  doctrines  of  these  ca.=es. 
appears  not  to  iiavo  Wen  well  considered  or  reported.  It  coiilain.^,  tor  instance,  a  double  leplicatioii 
to  the  tame  plea,  of  wliiih  no  notice  seems  to  have  been  taken.  It  must  yield,  1  think,  to  the  weight 
of  the  opposing  opinions. 

tThe  recent  decinons  in  the  court  of  appeals  are  ir.ore  than  ever  opposed  to  ravelling  old  transac- 
tions. See  liurwell's  Kx.  I's.  Andertion,  3  Leigh.  Since  wliicli,  the  lollowing  cases,  not  yet  report- 
ed, have  been  detiflod  np<jn  the  principles  sot  forth  in  the  text.  Carr  vs.  Chapman  ;  Tindal  vs.  Hyl- 
ton;  Mclntirc  vs.  IMclnlirc,  and  Colverl  vs.  Rlillstead. 

It  may  be  proper  to  remark,  however,  tiiat  the  doctrine  of  presnn)ption  from  length  of  lime  is  dis- 
tinct fromlliat  whicii  ih  ran-ed  from  the  acuiiiescence  of  p^irtics.  I'or  acquiescmce  fjr  much  less  than 
iwentv;  ears  may  bar  a  demand.  See  2  Mcrivale,  3U2.  And  30  abandonment  of  right  may  be  pre- 
Eumcd  fiotii  circ'unisiaiiccs.     1  Mun,  301. 


CKAP.  21. J  ACCOUNTS.  417 

eame  subject-matter  of  the  demand  in  equity  can  also  be  made  the  subject 
of  an  action  at  law,  the  rule  of  analogy  applies  in  all  its  force."  Thus  if 
A  turns  my  trustee  out  of  possession,  I  may  sue  A  in  equity,  or  my  trustee 
may  sue  at  law,  since  he  has  the  legal  title.  But  if  I  fail  to  sue  in  equity 
for  twenty  years,  the  statute  will  bar  the  assertion  of  my  equitable  claim  as 
much  as  it  would  bar  my  trustee  in  the  assertion  of  the  legal  title  on  my 
behalf.  Hence  we  find  lord  Redcsdale  remarking  that  wherever  the  legis- 
lature has  limited  a  period  for  law  proceedings,  equity  will  in  analogous 
cases  consider  equitable  rights  as  barred  by  the  same  limitation.  Every  right 
of  action  in  equity  that  accrues  to  the  party,  whatever  it  may  be,  must  be  act- 
ed upon  at  the  utmost  within  twenty  years.  But  if  not  pursued  within 
that  period,  the  statute  may  be  pleaded  ;  and  so  in  every  case  of  equitable 
title  (not  being  the  case  of  a  concealed  fraud,  or  of  a  trustee  whose  pos- 
session is  consistent  with  the  title  of  the  claimant)  it  must  be  pursued  with- 
in twenty  years.  These  principles  are  recognized  and  approved  by  our 
most  enlightened  courts.  See  7  John.  122.  See  also  6  Wheat.  481,  497» 
2  Merivale,  173,  357.  10  Wheat.  175,  Elmendorf  vs:  Tayjor.  4  Ran. 
493.  2  Jacobs  &  Walker,  cited  10  Wheat.  174.  There  th*e  doctrine  is 
stated  in  the  following  explicit  terms  :  "  Adverse  possession  of  an  equity  of 
redemption  by  one,  is  a  bar  to  another  person  claiming  the  same  equity  of 
redemption,  and  operates  as  a  disseizin."  "The  non-claim  of  an  equita- 
ble owner  for  twenty  years,  (supposing  it  the  case  of  one  who  must  with- 
in that  period  have  made  his  claim  in  a  court  of  law,  had  it  been  the  legal 
estate,)  under  no  disability,  and  where  there  has  been  no  fraud,  will  consti- 
tute a  bar  to  equitable  relief  by  analogy  to  the  statute  of  limitation,  if  dur-- 
ing  all  that  time  there  has  been  unequivocal  adverse  possession." 

1  shall  conclude  this  branch  of  our  subject,  already  extended  beyond  my 
expectations,  with  one  or  two  other  rules. 

It  has  been  laid  down  as  a  rule  not  to  be  departed  from,  except  under 
special  circumstances,  that  stewards,  agents,  managers,  &c.  are  bound  to 
keep  regular  accounts  of  their  transactions  on  behalf  of  their  employer:* 
n-ot  only  accourrts  of  payments  but  accounts  of  receipts  ;  and  if  such  person 
has  neglected  to  do  so  he  will  not  be  permitted  to  make  a  demand  for  work 
and  labor  in  that  character,  in  reference  to  which  he  has  kept  no  account. 
8  Vez.  369, 371,  375.  15  Vez.  432.  And  moreover,  in  such  case,  the  court 
will  proceed  to  settle  it  by  any  lights  that  are  afforded,  leaning  strongly 
against  the  man  who  having  thrown  every  thing  into  confusion  by  bis  ne- 
glect is  entitled  to  no  favor  in  the  eyes  of  a  court  of  equity.  Such  cases 
come  obviously  within  the  principle  prevailing  both  at  law  and  in  equity; 
omnia  pnesumunter  contra  spoliatorem. 

If  an  agent  or  bailiff  confounds  his  principal's  property  with  his  own,  he 
is  chargeable  with  the  whole,  except  what  he  can  prove  to  be  his  own.  15- 
Vez.  4.32. 

When  a  bill  is  filed  for  an  account,  if  on  the  settlement  there  appears  a 
balance  due  to  the  defendant,  a  decree  will  be  rendered  in  his  favor  against 
the  plaintiff;  for  in  such  cases  both  parties  are  considered  actors.  IMun. 
150,  447. 

"  If  a  bill  be  filed  to  impeach  a  settled  account,  specific  errors  must  be' 
shown  ;  but  where  the  accounts  are  not  sought  to  be  set  aside  for  fraud, 
but  letting  them  stand,  it  is  sought  to  surcharge  and  falsify  them,  it  is  a  fixed 
rule  that  some  error  must  be  charged,  and  this  though  the  account  contain- 
ed the  usual  words,  '  errors  excepted  :'  for  it  is  impossible  for  the  defendant 
to  defend  himself,  if,  under  a  general  charge,  not  specifying  any  error,  the 
plaintiff  may  come  at  the  hearing  with  the  proof  of  those  errors,  of  which 

"Hence  equity  lias  jurisdiction  of  all  such  accounts,  for  the  employer  is  presumed  to  have  no  othe^ 
knowledge  of  the  transactions  tirarrthe  accounts,  which  the  agent  ought  to  keep,  will  afford. 

VOL.  2 — 53 


418:  FKAUDSi  [  BOOK  3^^ 

the  defendant  has  heard  notliing.  There  must  be  error  enough  upon  the 
bill  to  show  there  is  reason  tor  it ;  the  plaintiff  proves  some  of  those  errors 
and  ffcts  a  degree."     2  John.  217.     1  Mad.  8-2.     See  3  Leigh,  348,  407. 

"  Where  a  bill  was  filed  for  an  account,  and  a  settled  account  is  suggest- 
ed by  the  answer,  but  not  proved,  liberty  was  given  in  the  decree  to  sur- 
charo-e  and  falsify,  if  the  master  should  find  any  settled  account.  When 
parties  are  thus  at  liberty  to  surcharge  and  falsify ,  they  are  not  confined  to 
mere  errors  of  fact,  but  may  take  advantage  oi  errors  in  law.''     1  Mad.  83. 

"Where  liberty  is  given  to  surcharge  and  falsify,  the  onus  probandi  is  al- 
ways on  the  party  having  that  liberty  ;  for  the  court  takes  it  as  a  slated  ac- 
count, and  establishes  it;  but  if  any  of  the  parties  can  show  an  omission, 
for  which  credit  ought  to  be,  that  is  a  surcharge  ;  or  if  any  thing  is  inserted 
that  is  a  wrong  charge,  he  is  at  liberty  to  show  it,  and  that  is  a  falsification  ; 
but  that  must  be  on  proof  on  his  side  ;  and  that  makes  a  great  difference 
between  the  general  cases  of  an  open  account,  and  where  only  leave  is 
given  to  surcharge  and  falsify  ;  for  such  must  me  made  out.     1  Mad.  83. 

"  A  stated  account,  to  be  good  and  pleadable  as  such,  need  not  be  signed 
by  the  party ;  'for  it  is  not  the  signing,  but  the  person  to  whom  the  account 
is  sent,  keeping  it  by  him  any  length  of  time  without  making  any  objection, 
whichbinds  him,  and  prevents  his  entering  into  an  open  account  afterwards. 
It  is  said  that  among  merchants  it  is  looked  upon  as  an  allowance  of  an 
account  current,  if  the  merchant  who  receives  it  does  not  object  against  it 
in  a  second  or  a  third  post. 

"  And  with  respect  to  foreign  merchants,  if  one  merchant  sends  an  ac- 
count current  to  another  in  a  different  country,  on  which  a  balance  is 
made  due  to  himself,  and  the  other  keeps  it  by  him  two  years  without 
objection,  the  rule  in  equity  and  of  merchants  is,  that  it  is  considered  as 
a  stated'  account."     1  Mad.  81. 

V.  OF  "FRAUDS." 

The  jurisdiction  of  courts  of  equity  in  cases  of  fraud,  is  that  which  it 
exercises  with  the  greatest  alacrity.  Unfortunately,  too,  it  is  one  of  the 
most  comprehensive,  since  the  only  boundaries  it  knows  are  those  which 
limit  also  human  knavery  and  human  ingenuity. 

Fraud  has  been  defined  to  be  any  kind  of  artifice  by  which  another  is  de- 
ceived. Pothier,  cited  1  Mad.  205.  All  surprise,  trick,  cunning,  dissem- 
bling, and  other  unfair  way  by  which  another  is  cheated,  is  fraud.  Collu- 
sion in  a  court  of  equity  is  fraud.  3  Atk.  757.  In  short,  "  fraud  is  infinite. 
Judges  could  not,  if  they  would,  lay  down  as  a  general  proposition  what 
constitutes  fraud,  or  establish  any  invariable  rule  which  should  define  it; 
And  even  if  they  could  distinctly  mark  out  how  far  they  would  go  in  re- 
lieving against  it,  or  define  strictly  the  species  of  evidence  of  it,  the  juris- 
diction would  be  cramped,  and  perpetually  eluded  by  new  schemes  which 
the  fertility  of  man's  invention  would  contrive."  Hardwicke's  letter  to 
Lord  Kuiines,  I  Life  of  Kaimes,  237.     3  Atk.  278,  cited  1  Mad.  201. 

Frauds  ;ire  all  of  them  cognizable  in  some  court  or  other.  If  they  amount 
to  criminal  offences  punishable  by  law,  equity  has  no  jurisdiction  to  en- 
force the  [)unishment.  It  interferes  in  cases  of  fraud  in  a  civil  and  not  a 
criminal  j)oint  of  view.  Punitive  justice  belongs  only  to  the  courts  of 
common  law.  1  Black.  Com.  Intro.  §3.  On  this  ground  the  application 
of  the  attorney  general  of  New- York,  to  restrain  an  unchartered  bank  from 
going  on  with  llieir  business,  was  refused,  as  being  in  the  nature  of  a  quo 
ivarranlo,  which  is  a  criminal  proceeding.  2  John.  371.  The  rule,  how- 
ever, is  subject  to  tliis  modification  ;  that  if  the  criminal  proceeding  be  also 
of  the  nature  of  a  civil  remedy,  (as  the  writ  of  forcible  entry  and  detainer,) 


■CHAP 


21.]  FRAUDS.  419 


^nd  the  rights  of  the  parties  have,  before  the  institution  of  such  criminal 
proceeding,  been  submitted  to  the  jurisdiction  of  a  court  of  equity,  that 
court  will  interpose  and  stop  the  proceedings  upon  the  indictment;  2  Atk. 
30-2.  1  Fonb.  5  ;  so  far  only,  I  presume,  however,  as  to  restrain  the  resti- 
tution of  possession. 

The  jurisdiction  of  courts  of  equity  extends  to  every  case  of  fraud  which 
is  cognizable  in  the  courts  of  common  law,  with  the  exception  of  the  sin- 
gle case  of  fraud  in  obtaining  a  will.  This  in  England,  by  the  practice  of 
the  court,  and  with  us,  by  the  express  provisions  of  the  law,  is  constantly 
referred  to  a  court  of  law  in  the  shape  of  an  issue  devisavit  velnon.  1  Fonb. 
12.  But  it  is  not  equally  true  that  courts  of  law  have  in  all  cases  of  fraud 
a  jurisdiction  concurrent  with  that  of  courts  of  equity,  notwithstanding  the 
broad  expressions  used  by  Mr.  Blackstone,  (Book  2,  431,)  and  by  Lord 
Mansfield,  (1  Bur.  396,)  and  by  Lord  Loughborough  (2  Vez.  jr.  295.) 
The  principle  that  fraud  and  covin  vacate  every  contract  even  at  law,  is  to 
be  taken  in  subordination  to  another  principle,  namely,  that  at  law  the  par- 
ty is  estopped  from  averring  such  a  matter  against  a  specialty.  Thus,  though 
a  bond  be  obtained  by  fraudulent  misrepresentations,  or  for  a  fraudulent 
•consideration,  or  be  founded  on  any  imposition  which  preceded  its  execu- 
tion, the  obligor  is  estopped  at  law  from  alleging  this  against  his  deed,  ana 
the  fraud  therefore  is  cognizable  only  in  equity.  But  where  the  fraud  re- 
lates to  the  execution  of  the  instrument,  as  if  it  be  misread,  or  his  signa- 
ture be  obtained  to  a  paper  which  he  did  not  intend  to  sign,  there  is  no 
doubt  that  it  may  be  vacated  even  in  a  court  of  law.  6  Mun.  366.  And 
the  decisions  of  Lord  JMansfield  himself  clearly  shew  that  his  broad  expres- 
sion is  to  be  thus  restricted,  and  that  the  fraud  which  the  party  is  permitted 
to  give  in  evidence  at  law  to  avoid  his  bond,  must  be  such  as  relates  to  the 
execution  of  the  instrument.  Cow.  47.  See  13  John.  Rep.  4-30.  ISV^z^ 
483,  and  2  Rand.  426,  in  which  last  the  apparent  conflict  with  these  doc- 
trines, of  the  case  of  Wormley's  executars  vs.  Moffit,  (6  Mun.  120,)  is  sa- 
tisfactorily explained.     See,  also,  6  Ran.  169. 

It  is  however  generally  true,  that  frauds  are  cognizable  at  law  as  well  as 
in  equity,  unless  the  party  is  estopped  by  his  deed  from  alleging  it.  Hence 
a  note  not  under  seal  may  be  contested  at  law  on  the  ground  of  fraud  either 
in  the  consideration  or  in  the  transactions  which  led  to  its  execution.  And 
fraud  in  all  contracts  not  under  seal  may  be  redressed  where  the  party  sues 
for  damages,  or  it  may  j>e  a  ground  of  defence  in  such  cases  where  the 
contract  is  attempted  to  be  enforced. 

In  treating  this  head  of  equity  I  shall  not  pretend  to  an  enumeration  of 
the  various  frauds  which  are  cognizable  in  chancery.  But  it  may  be  use- 
fful  to  devote  our  attention  somewhat  particularly  to  a  few  important  heads. 

I.  Frauds  in  relation  to  wills. 

1.  Questions  of  fraud  in  reference  to  the  execution  and  validity  of  a  will 
under  which  an  estate,  whether  real  or  personal,  legal  or  equitable,  is  claim- 
ed, are  properly  and  only  triable  at  law  upon  an  issue  devisavit  vel  non.  1 
R.  C.  ch.  104,  §  13.  In  England  if  the  will  relates  to  realty  it.  is  referred 
to  the  courts  of  law; — if  to  personalty  it  is  referred  to  the  spiritual  court. 
But  with  us,  where  a  will  has  been  proved  before  a  court  of  probate,  any 
person  who  is  interested  and  desirous  to  contest  it,  commences  the  pro- 
ceeding by  filing  his  bill  in  equity,  and  when  the  answer  comes  in,  an  issue 
is  then  directed  to  be  tried  by  a  jury  before  a  court  of  law,  and  this  whether 
the  will  be  of  realty  or  personalty,  or  both.     1  R.  C,  ch.  104,  §  I.3. 

2.  But  though  fraud  in  the  execution  of  a  will  is  peculiarly  cognizable 
in  the  manner  just  pointed  out,  yet  fraud  in  procuring  a  will  by  misrepre- 
sentation or  trick,  seems  always  to  have  been  considered  as  fully  within  the 
province  of  equity,  though  the  wiU  be  considered  as  good  at  law.     As  if  A 


420  FRAUDS.  [BOOKS. 

afrrcGS  to  pay  B  iElOOO  provided  he  will  devise  hia  landa  to  him  ;  and  he 
pays  the  £1000  in  forged  bank  bills,  the  testator's  heir,  it  is  said,  may  avoid 
the  will.  1  P.  Wms.  288.  2  Vern.  700.  So  where  a  son  prevailed  on 
his  mother  (whom  his  father  had  made  his  executrix,  whereby  under  the 
English  law  she  became  entitled  to  all  his  estate  after  payment  of  debts 
ancf  legacies,)  to  get  the  father  to  make  a  new  will  and  make  him  executor, 
promising  to  hold  in  trust  for  his  mother,  the  trust  was  decreed  ;  the  court 
in  this  way  countervailing  the  fraud  by  controlling  the  legal  operation  of 
the  will.  And  so  if  by  fraud  and  misrepresentation  a  testator  disinherits 
his  heir :  as  where  the  person  interested  folsely  represents  his  child  to  be 
dead,  or  traduces  him  with  a  view  of  alienating  the  testator's  affections 
from  him,  the  fraudulent  will  may  in  effect  be  frustrated  by  considering  the 
devisee  as  a  trustee  for  the  heir. 

3.  The  converse  of  the  principle  here  stated  is  equally  true  ;  for  if  a  will 
be  suppressed  or  destroyed,  it  is  the  province  of  a  court  of  chancery  to  re- 
lieve. 1  Mad.  258.  And  this  end  is  attained  (where  the  contents  of  the 
will  are  established)  by  decreeing  a  conveyance  to  be  made  by  the  heir,  who 
suppresses  the  will,  to  the  party  claiming  under  it.  Amb.  249.  1  P.  Wms. 
731.  Upon  the  same  principle  fraud  in  preventing  a  legacy  or  devise  be- 
comes the  subject  of  equitable  relief;  as  where  the  heir  promised  the  own- 
er that  if  the  estate  was  permitted  xO  descend  he  would  make  provision  for 
his  mother,  wife,  or  other  person,  the  court  compelled  the  heir  to  discover 
whethe'r  he  had  made  the  promise,  and  decreed  accordingly.  9  Vez.  519. 
2  Free.  34.  11  Vez.G38.  And  in  these  cases  the  wrongdoer  is  treated  as 
a  trustee  even  in  England,  although  all  declarations  of  trusts  are  required 
by  statute  there  to  be  in  writing :  but  that  statute  does  not  apply  to  such 
trusts  as  are  raised  by  courts  of  equity  in  order  to  countervail  a  fraud.  See 
9  Vez.  519. 

In  cases  of  this  description,  it  is  necessary  that  the  claimant  under  the 
will  should  satisfactorily  establish  the  fact  that  the  instrument  once  had  ex- 
istence. The  next  step  in  his  progress  is  the  proof  of  the  destruction  or 
suppression  of  the  will  by  some  person  other  than  the  testator : — and  this 
fact  ought,  I  conceive,  to  be  clearly  proved,  not  only  because  fraud  is  in  no 
case  to  be  presumed,  and  in  all  ought  to  be  clearly  established  before  it  is 
taken  for  true,  but  because  the  setting  up  wills  being  in  general  a  substitu- 
tion of  oral  for  written  evidence,  is  in  conflict  with  the  spirit  of  the  statute, 
which  requires  all  wills  (except  certain  nuncupative  wills)  to  be  in  writing. 
See  2  P.  Wms.  748.  1  Vern.  408.  Another  reason,  indeed,  conspires 
strongly  with  these  to  shew  the  propriety  of  demanding  the  clearest  evi- 
dence of  the  suppression  or  destruction  by  some  person  other  than  the 
testator.  It  is,  that  a  will  being  revocable  in  its  nature,  nothing  is  more 
common,  and  therefore,  in  any  given  case,  nothing  is  more  probable  than 
that  the  testator  himself  may  have  destroyed  it.  It  is,  to  say  the  least,  more 
probable  that  he  should  have  changed  his  mind  and  destroyed  his  will  with 
a  view  to  make  another,  than  that  a  third  person  should  have  committed 
the  infamous  act  of  suppressing  it  with  Iraudulcnt  designs. 

But  when  the  instrument  is  once  proved  to  have  been  fraudulently  sup- 
pressed or  destroyed,  we  find  the  courts  of  equity  very  rigorous  towards 
those  who  with  interested  views  have  been  guilty  of  the  suppression.  The 
jjrinciple  with  tliut  court,  as  well  as  with  the  courts  of  law,  is,  that  "omnia 
prttsumnnlur  contra  spoliatorem."  Thus  in  one  case  the  interested  person 
who  confessed  he  had  burnt  an  instrument,  was  committed  until  he  con- 
sented to  admit  it  as  stated  by  his  adversary;  2  Vern.  OGl,  a  case  of  mar- 
riage articles.  In  another  case  (of  a  suppressed  will)  where  no  exact  evi- 
dence was  produced  of  the  conlcnts,  the  person  claiming  as  devisee  was 
decreed  to  hold  and  enjoy  until  the  defendant  produced  the  will,  or  until 


s 


€HAP.  «!.]  FRAUDS.  421 

further  order.     1  P.  Wms.  733,  748.     See  also  1  Vern.  207,  308.     1  Br, 
P.  C.  250. 

It  must  be  obvious,  however,  that  there  is  much  delicacy  in  the  exercise 
of  this  branch  of  jurisdiction,  in  reference  to  the  ascertainment  of  the  con- 
tents of  the  suppressed  will.  In  every  such  case  the  proof  of  the  contents 
must  depend  upon  oral  testimony  ;  and  thus,  while  the  statute  of  wills 
makes  writing  and  (in  the  case  of  lands)  signing  and  attestation  also  essen- 
tial, a  will  may  thus  be  in  effect  set  up  by  the  parol  testimony  of  witnesses 
alone :  thus  opening  the  door  to  all  the  frauds  and  perjuries  the  statute  was 
intended  to  remedy.  On  the  other  hand,  the  rigorous  proceedings  which 
have  just  been  mentioned  as  having  been  adopted  against  the  suppressor  of 
a  will,  substitute  an  arbitrary  rule  for  the  entire  want  of  evidence.  We 
have  no  case  in  our  books  on  the  subject,  nor  am  I  aware  of  any  others 
than  those  already  cited,  except  a  decision  in  3  Atkyns,  360,  that  in  such 
cases  the  contents  of  the  whole  will  need  not  be  proved,  but  only  so  much 
as  relates  to  the  demand. 

4.  Fraudulent  devises  to  the  prejudice  of  creditors  also  come  under  this 
head  of  jurisdiction.  But  as  they  have  been  spoken  of  elsewhere,  I  shall 
say  nothing  of  them  here. 

II.  Frauds  in  relation  to  deeds. 

1.  In  relation  to  the  execution  of  deeds :  as  where  one  instrument  is 
surreptitiously  introduced  in  the  place  of  another,  so  that  the  party  signs 
and  seals  one  different  from  that  which  he  supposes  he  is  executing:  or 
where  to  an  illiterate  man  the  deed  is  falsely  read,  or  its  contents  misrepre- 
sented. In  these  and  such  like  cases  the  party  defrauded  may  be  relieved 
either  in  equity  or  at  law  ;  for  those  facts  are  good  evidence  under  the  plea 
of  non  est  factum.     6  Mun.  366.     Cow.  47. 

2.  The  suppression  or  concealment  of  deeds  stands  upon  the  same 
grounds  and  is  governed  by  the  same  principles  which  have  been  laid  down 
in  relation  to  wills,  and  need  not  be  here  repeated.  I  may  remark,  howev- 
er, that  so  odious  is  such  a  fraud,  that  contrary  to  its  usual  notions,  a  court 
of  equity  will  even  aid  a  volunteer  in  the  recovery  of  the  amount  of  a  bond 
from  an  obligor  who  has  surreptitiously  procured  and  destroyed  it.  1  Atk. 
■287.    2  Eq.  Ab.  247. 

3.  Frauds  occasioned  by  preventing  the  execution  of  deeds,  are  also  the 
subjects  of  equitable  relief.  As  where  a  recovery  was  prevented  by  a  per- 
son, that  the  estate  might  devolve  on  another :  14  Vez.  289,  290 :  though  it 
has  been  doubted  in  England  whether,  on  the  sale  of  a  ship,  the  want  of 
an  endorsment  required  by  the  register  acts,  though  occasioned  by  fraud; 
could  be  remedied.     11  Vez.  621.     13  Vez.  588. 

III.  Frauds  as  to  contracts  generally.  This  head  will  embrace,  from  its 
comprehensiveness,  many  matters  which  would  fall  equally  well  under  the 
head  of  deeds. 

1.  At  the  very  foundation  of  the  doctrines  on  this  subject  is  the  well 
known  principle  that  a  suggeslio  falsi  or  suppressio  veri  amounts  to  fraud, 
and  will  avoid  a  contract,  or  be  a  ground  of  relief  in  equity.  ;  1  Mad.  208. 

The  suggcstio  falsi  or  suppressio  veri  may  be  on  the  part  of  him  with 
whom  I  contract,  or  of  some  third  person,  who  knows  when  he  suggests 
the  falsehood  that  I  am  contracting  in  reference  to  the  matter  to  which  it 
relates.  In  the  first  case  it  is  a  constant  rule  of  equity  that  a  release,  or 
deed,  or  contract,  obtained  upon  such  false  suggestion,  shall  be  avoided.  1 
Fonb,  113.  And  this  is  equally  true,  whether  the  false  representation  was 
made  with  a  knowledge  that  it  was  false,  or  without  a  knowledge  that  it 
was  true.  A  party  may  bind  himself  by  a  representation  as  much  as  by  an 
express  covenant.  If  knowingly  he  represents  what  is  not  true,  there  can 
be  no  doubt  he  should  be  boujid.     If  without  knowing  whether  his  repre- 


422  FRAUDS.  [  BOOK  3. 

sentation  is  true  or  not,  he  takes  upon  himself  to  make  it  to  another,  and 
upon  the  faith  of  it  that  other  acts,  he  is  not  less  bound,  although  he  may  have 
been  only  mistaken,  and  is  therefore  comparatively  innocent.  1  Br.  C.  C. 
546.  6  Vez.  174,  183.  10  Vez.  475.  1  Vez.  &  B.  355.  9  Vez.  21. 
But  equity  goes  yet  further ;  and  although  the  person  who  suggests  the 
falsehood  be  no  party  to  the  contract,  yet  if  another  has  suffered  by  his  mis- 
representation, he  must  make  amends.  For  it  is  a  well  established  princi- 
ple that  where  a  man  who  has  a  title  and  knows  of  it,  stands  by*  and  either 
encourages  or  does  not  forbid  my  purchase,  he  and  all  claiming  under  him 
shall  be  bound  by  the  fraudulent  concealment  of  his  right,  and  shall  be  post- 
poned in  equity  to  me  :t  neither  are  infancy  or  coverture  an  excuse  in  such 
case.  1  Fonb.  151,  1524  But  in  such  cases  these  things  are  to  be  observ- 
ed. 1.  That  whether  the  suppression  is  by  the  contracting  party  or  a  third 
person,  the  other  party  must  have  a  right  to  a  full  and  correct  representa- 
tion of  the  fact,  or  the  rule  will  not  apply.  Thus  in  the  case  already  stated 
of  the  purchase  by  A  from  B  of  land,  in  which  he  knows  there  is  a  valuable 
mine,  which  fact  he  does  not  disclose  to  B,  and  thereby  purchases  it  at  an 
under  price,  yet  this  (however  in  conflict  with  nice  principles  of  honor)  does 
iiot  amount  to  such  a  fraud  as  courts  can  take  cognizance  of,  since  the 
rules  of  law  are  framed  to  suit  the  great  mass  of  society,  and  not  men  of 
scrupulous  delicacy  only.  2  B.  R.  420.  Yet  if  A  had  been  B's  agent  or 
trustee  for  the  sale  of  the  land,  and  had  through  such  agency  acquired  this 
knowledge,  he  would  have  been  bound  to  disclose  it,  and  the  concealment 
•would  then  have  been  a  fraud.  See  the  case  of  Buck,  &e.  vs.  Copland,  2 
Call,  218.  2  Bro.  420.  2.  It  is  to  be  observed  that  in  the  case  of  the  third 
person  who  by  his  silence  loses  his  rights,  it  is  essential  that  he  should 
know  of  his  rights  at  the  time ;  for  the  principle  on  which  he  is  made  a 
loser,  is  his  fraudulent  concealment:  and  this  implies  a  knowledge  on  his 
part  of  the  fact  concealed.  3.  It  is  equally  essential  that  he  should  be 
conusant  of  the  treaty  in  which  the  fraud  was  practised,  (1  Fonb.  152,)  or 
in  other  words,  that  he  was  aware  that  the  parties  were  contracting  about  a 
matter  which  concerned  his  interest.  This  will  be  fully  illustrated  by  an 
instance  taken  from  that  class  of  cases  which  most  frequently  fall  under  the 
influence  of  the  principle  under  discussion.  As  where  A,  before  he  would 
lend  his  money  to  B  on  mortgage,  sent  to  C  to  inquire  if  he  had  any  in- 
cumbrance on  the  estate,  who  denied  that  he  had,  although  in  reality  he 
had  one.  C,  though  a  prior  mortgagee,  was  postponed  to  A.  2  Vern. 
554.  2  Vern.  370.  1  Fonb.  152.  2  John.  C.  R.  609.  4  John.  70.  See, 
also,  cases  cited  1  Mad.  209,  256,  and  others  to  the  effect  of  this  principle, 
G  John.  C.  R.  166.  5  John.  C.  R.  184,  and  7  John.  C.  R.|l  How  far  the 
case  of  a  movlgagec  standing  by  without  disclosing  his  title,  would  be  af- 
fected by  our  recording  acts,  to  which  every  purchaser  may  refer,  I  shall 
not  here  stop  to  inquire.  Chancellor  Kent  seems  to  think  if  his  own  mort- 
gage was  recorded,  that  that  would  be  sufficient  notice  unless  there  was  in- 
tentional fraud,  false  representation,  assurance  of  good  title,  denial  of  any 
lien,  &.C.    4  John.  70. 

5.  Fraud  may  also  consist  in  obtaining  a  contract  by  oppression,  or  by 
an  undue  use  of  the  power  or  influence  that  one  has  over  another.     Of  this 

*See  2  Leigh,  401,  and  Book  2. 

t  A  mortgajjee  may  from  liis  conduct  be  considered  as  abandoning  his  mortgage.  A  Ulunf.  351.  So, 
also,  a  contract  may  be  set  aside  on  the  ground  that  it  was  abandoned.     1  H.  &.  M.  4:29. 

{See  Koberls  on  frauds, 52i2.    Sug.  430.    1  Brown  Cli.  Ca.  3J3.    2  Eq.  Ca.  Abr.  453. 

II  But  it  lias  l)een  renfaiked  that  the  rights  of  a  party  are  not  lost  by  conceahnent  or  raisrepresenfa- 
tioii,  unless  it  be  colhisive  or  fraudulent,  or  liie  negligence  be  so  gross  as  to  amount  to  piool  of  fraud. 
1  Rand.  407.  And  it  has  inoreovcr  l)een  strongly  i)l)served,  that  in  relation  to  purchases  ot  real  pro- 
perty, no  prudent  man  relies  on  the  represenlalion  of  others,  but  lie  looke  to  the  title  deeds  and  judg- 
es lor  himsell.  3  T.  11. 64.  In  kucU  case,  indeed,  if  lie  be  deceived  he  has  nothing  to  blame  but  his 
g\vu  folly. 


GiiAP.  21.]  FKAUDS.  423 

the  strongest  instance  is  that  of  duress,  which,  as  we  have  seen,  avoids  a 
contract  or  deed  at  law  as  well  as  in  equity  ;  though  equity  requires  much 
less  evidence  to  establish  duress  than  a  court  of  law.  Sec  the  head  of  Du- 
ress in  Book  2.  But  even  where  there  has  been  no  duress,  strictly  so  call- 
ed, the  oppressive  conduct  of  one  of  the  parties  may  induce  a  court  to  re- 
scind (he  contract  at  the  suit  of  the  other.  Cases  of  this  description  are 
generally  to  be  found  among  persons  standing  in  some  peculiar  relation  to 
each  other,  from  which  arises  some  undue  power  of  the  one  over  the  other. 
Such  are  the  cases  of  parent  and  child,  guardian  and  ward,  attorney  and 
client,  &c.  These  are  therefore  viewed  with  much  jealousy  by  courts  of 
equity.  As  in  the  case  of  a  contract  between  father  and  child,  if  there  is 
any  appearance  of  an  abuse  of  the  parental  authority,  the  contract  will  be 
rescinded.  And  such  contracts,  although  they  are  by  no  means  void  merely 
because  of  the  relation  between  the  parties,  are  looked  upon  with  nice  scru- 
tiny, if  not  with  jealousy;  though  if  the  complaint  should  be  exhibited  af- 
ter a  considerable  length  of  time,  or  after  the  father's  death,  it  would  be  less 
favorably  attended  to,  and  would  be  without  redress  if  the  transaction  has 
resiflted  in  the  marriage  of  the  child  and  a  settlement,  by  which  persons  un- 
born acquire  a  right.  5  Vez.  877.  It  must  be  observed,  moreover,  that  an 
act  done  out  of  the  natural  dislike  every  child  has,  or  ought  to  have,  of  dis- 
pleasing a  father  or  mother,  does  not  amount  to  that  sort  of  fear  which  will 
vitiate  a  contract ;  see  1  Mad.  245  ;  and  that  acts  of  generosity  done  by  a 
wealthy  son  towards  his  parent,  such  as  giving  him  a  bond  to  pay  him  an 
annuity  for  life,  if  done  freely  and  without  coercion,  are  good.  1  P.  Wms. 
G07.  For  a  court  of  equity,  while  it  reprobates  fraud  and  the  want  of  con- 
sideration, is  not  insensible  to  the  respect  which  is  due  to  the  most  noble 
feelings  of  our  nature. 

The  case  of  guardian  and  ward  stands  upon  grounds  very  similar  to  that 
of  parent  and  child  :  but  enough  has  been  said  on  this  subject  in  the  notes 
to  the  1st  Book.  See  the  case  of  a  servant  who  had  acquired  undue  influ- 
ence over  his  young  master,  .3  P.  Wms.  129. 

There  is  another  class  of  persons  whose  contracts  with  those  in  their 
power  merit  and  always  receive  the  most  severe  scrutiny  of  the  court,  and 
are  looked  upon  with  the  greatest  jealousy.  I  speak  of  sheriffs,  constables, 
jailors,  and  such  like  officers  of  the  law  ;  whose  modes  of  life  create  (with- 
a  few  honorable  exceptions)  much  insensibility  to  the  wretchedness  of  those 
within  their  power ;  whose  fortunes  are  often  made  by  speculation,  shaving, 
and  keen  bargains;  who  have  the  means  (within  the  legal  limits  of  their 
authority)  of  increasing  or  diminishing  the  difficulties,  embarrassments,  and 
even  privations  and  sufferings  of  their  prisoner,  according  as  he  is  more  or 
less  complying  with  their  desires,  and  who  therefore  may  in  reality  be 
tightening  the  cord  about  his  neck  with  one  hand,  while  they  are  soothing 
him  by  blandishments  with  the  other.  It  is  easy  for  persons  so  situated  to 
affect  a  pain  they  do  not  feel  at  the  cruel  necessity  which  duty  and  their 
own  safety  imposes  of  pursuing  the  strict  course  of  the  law,  and  to  seem  to 
the  world  disposed  to  be  indulgent  and  lenient,  when  they  are  in  reality 
practising  the  vilest  arts  to  secure  some  illegitimate  gain.  Their  contracts 
with  their  prisoners  therefore  always  merit  the  strictest  scrutiny,  although  if 
they  pass  this  severe  ordeal,  they  are  considered  as  valid,  unless  they  come 
within  the  prohibitory  statute.     1  R.  C.  ch.  78,  §  20. 

There  is  yet  another  class  of  persons  who  may  be  mentioned  under  this 
head.  I  speak  of  the  clergy,  whose  cupidity  in  former  times  is  matter  of 
history,  and  who  exercised  their  influence  over  the  superstitious  and  bigot- 
ted,  not  merely  for  the  aggrandizement  of  the  church,  but  to  pamper  their 
own  luxury  and  vice.  To  the  honor  of  the  present  age  be  it  spoken,  the 
rapacity  of  the  clergy  is  no  longer  any  thing  but  history :  yet  the  refining 


424  TRAUDS.  i  BOOK  3. 

influence  of  religion  is  not  always  sufficiently  powerful  to  eradicate  the 
basest  and  most  corroding  of  passions :  and  accordingly  a  very  late  case  is 
afforded,  of  the  perpetration  of  a  gross  and  detestable  fraud  under  the 
eloak  of  religion,  *and  by  means  of  an  undue  influence  acquired  over  the 
mind  of  a  weak  and  pious  lady,  by  her  false  and  crafty  minister.  Hugue- 
nin  vs.  Basely,  14  Vez.  285.  In  that  case  a  clergyman  by  undue  influence 
and  abused  confidenfce  in  him  as  an  agent,  obtained  a  voluntary  settlement 
upon  his  own  family  of  an  estate,  subject  to  a  comparatively  small  life  an- 
nuity. Sir  Samuel  Romily  in  the  argument  cites  the  just  remark  of  Cicero, 
"  Totius  aulum  injustUicB  nulla  capitalior  est  quam  eorum  qui  cum  maxime 
fallunt  id  agunt  ut  viri  boni  videantur  ;"  which,  in  reference  to  the  case  in 
question,  we  may  shortly  paraphrase  thus:  "  no  frauds  are  more  detestable 
than  those  which  are  perpetrated  under  the  cloak  of  religion."  "  What," 
said  that  able  advocate,  "  is  the  authority  of  a  guardian,  or  even  that  of  a 
parent,  compared  with  the  power  of  religious  impressions,  under  the  ascen- 
dancy of  a  spiritual  adviser ;  with  such  an  engine  to  work  upon  the  pas- 
sions, to  inspire  (as  the  object  maybe  best  promoted)  despair  or  confidence  ; 
to  alarm  the  conscience  by  the  horrors  of  eternal  misery,  or  support  the 
drooping  spirits  by  unfolding  the  prospect  of  happiness  which  is  never  to 
end."  The  chancellor  set  aside  the  settlement,  considering  the  circum- 
stances under  which  it  was  executed  as  sufliciently  evincing  a  fraud  on  the 
one  part,  and  a  want  of  freedom  of  will  on  the  other. 

3.  Another  species  of  fraud  is  that  which  consists  in  taking  the  advan- 
tage of  the  incapacity  of  another,  whether  proceeding  from  natural  imbe- 
cility of  mind,  or  from  extreme  old  age,  or  drunkenness. 

First,  Natural  imbecility.  It  need  scarcely  be  remarked  that  contracts- 
with  idiots  and  lunatics  are  voidable,  unless,  indeed,  where  made  with  a  lu-^ 
natic  in  an  unquestionably  lucid  interval.  Nor  will  a  contract  made  with  a 
man  who  is  sane,  be  affected  by  his  subsequent  lunacy.  Sug.  153.  But 
there  is  a  state  of  mind  short  of  absolute  incapacity,  which  often  forms  in 
equity  one  motive  for  rescinding  a  contract.  Weakness  of  mind,  indeed, 
does  not  alone  appear  to  be  a  sufficient  ground  to  invalidate  a  bargain. 
According  to  Sir  Joseph  Jekyl,  if  a  weak  man  gives  a  bond,  and  there  be 
no  fraud  or  breach  of  trust  in  obtaining  it,  equity  will  not  set  it  aside  only 
for  the  weakness  of  the  obligor  if  he  be  coinpos  mentis,  for  the  court  will  not 
measure  the  size  of  people's  understandings,  there  being  no  such  thing  as 
an  equitable  incapacity  where  there  is  a  legal  capacity.  3  P.  Wms.  131. 
Notwithstanding,  however,  the  strong  support  this  opinion  derives  from 
those  of  lord  Hardvvicke,  (2  Atk.  231,  251,)  lord  Thurlow  considered  a  de- 
gree of  weakness  short  of  legal  incapacity,  as  a  material  ingredient  in  de- 
termining whether  there  was  fraud.  And  it  would  seem  that  this  is  the  cor- 
rect principle  ;  that  though  weakness  of  mind  short  of  legal  incapacity  will 
not  alone  avail,  yet,  united  with  other  circumstances,  it  may  very  strongly 
support  a  charge  of  fraud  in  obtaining  a  contract : — 'though  it  may  not  va- 
cate it  per  se,  it  is  evidence  which  must  have  its  influence  on  every  well  re- 
gulated mind  in  determining  on  the  fairness  of  the  transaction.  See  1 
Mad.  224,  citing  3  Wood.  App.  18.  14  Vez.  290.  See  also  Newland  & 
Powell  on  Contracts,  30,  31,  32.  It  is  justly  said,  indeed,  on  the  one  hand, 
that  courts  of  equity  would  have  enough  to  do  if  they  were  to  examine  into 
the  wisdom  and  prudence  of  men  in  disposing  of  their  estates  ;  and  there- 
fore, let  a  man  be  wise  or  unwise,  if  he  be  legally  compos  he  is  a  disposer 
of  his  property,  and  his  will  stands  instead  of  a  reason:  1  Fonb.  59.  3 
Mun.  130  :  but  yet  it  is  admitted,  on  the  other  hand,  that  weakness  of  mind 
furnishes  strong  ground  of  suspicion  that  persons  in  such  state  are  acted 
upon  by  improper  influence.  1  Fonb.  GO.  I  Mun.  557.  2  Vez.  sen.  627. 
13  Vez.  136.    3  Leigh,  567. 


CHAP.  21.]  FRAUDS.  425 

Secondly.  In  like  manner,  excessive  old  age  with  great  weaknees  of 
mind  may  be  a  ground  for  setting  aside  a  conveyance,  provided  the  circum- 
stances of  the  case  in  other  respects  justify  the  imputation  of  frand.  But 
without  such  proof  it  would  not  of  itself  invalidate  a  transaction.  1  Mun. 
518. 

Thirdly.  With  respect  to  drunkenness,  the  law  generally  considers  it 
as  no  excuse  for  offences  committed,  nor  any  reason  for  setting  aside  a 
contract  executed  in  a  state  of  intoxication.  But  equity  will  give  relief  in 
such  cases,  where  the  drunkenness  was  caused  by  the  fraud  or  the  contri- 
vance of  the  other  party,  or  where  the  drunken  man  was  so  excessively  in- 
toxicated as  to  be  utterly  deprived  of  the  use  of  his  understanding.  1 
Fonb.  61,  62.  See  1  H.  &  M.  70,  71.  6  Mun.  15.  As  a  general  rule, 
the  being  in  a  state  of  intoxication  will  not,  therefore,  invalidate  a  contract 
when  there  has  been  no  undue  advantage,  unless  the  party  is  utterly  inca- 
pacitated by  it.  6  Mun.  15.  1  Vez.  19.  But  if  there  be  circumstances 
indicating  fraud,  it  would  seem  that  even  a  less  degree  of  intoxication 
would  be  taken  into  the  estimate  in  weighing  the  evidence  offered  to  esta- 
bhsh  imposition.  See  1  Mad.  239.  Nor  must  it  be  omitted  that  even 
though  a  contract  be  in  its  origin  assailable  for  the  cause  here  spoken  of, 
yet  a  subsequent  confirmation,  when  the  disability  is  removed,  will  make  it 
good  :  6  Mun.  15:  a  doctrine,  indeed,  not  confined  to  cases  of  this  de- 
scription, but  embracing  most  other  cases  of  contracts  which  are  not  radi- 
cally vicious.     See  J  Fonb.  131.     3  P.  Wms.  290.     3  Mun.  129. 

4.  Contracts  are  sometimes  assailed  on  the  ground  of  the  want  of  inade- 
quacy of  consideration.*  Where  the  inadequacy  is  so  gross,  strong,  and 
manifest,  that  its  inequality  shocks  the  moral  sense,  a  court  of  equity  may 
not  only  refuse  to  carry  it  into  execution,  but  may  lend  its  aid  to  set  it  aside. 
But  though  the  contract  is  greatly  unequal,  yet  if  its  inequality  be  not  such 
as  to  carry  with  it  decisive  evidence  of  fraud,  equity  (though  it  might  re- 
fuse to  enforce  it)  will  not  take  upon  itself  to  rescind  it ;  unless  other  cir- 
cumstances should  conspire  to  fix  the  stamp  of  fraud  upon  the  transaction  : 
as  where  the  vendor  sells  at  a  grossly  inadequate  price,  not  being  conusant 
of  his  right ;  2  Bro.  150 ;  or  the  vendee  takes  advantage  of  his  distress.  2 
Leigh,  149.  In  all  these  cases,  too,  the  adequacy  of  the  consideration  is 
considered  with  reference  to  the  time  of  the  contract,  and  not  to  any  sub- 
sequent event,  or  to  the  rise  or  fall  in  the  value  of  the  property  after  its 
completion.     Sug.  189,  &c. 

It  seems  that  the  judges  have  not  altogether  coincided  as  to  what  consti- 
tutes gross  inadequacy,  nor  does  it  appear  to  be  very  susceptible  of  being 
reduced  to  any  determinate  rule.  The  question  whether  inadequacy  shall 
be  permitted  to  invalidate  a  contract,  depends,  indeed,  so  often  upon  other 
circumstances  which  are  combined  with  it,  or  are  calculated  to  control  its 
influence,  that  it  may  not  be  amiss  to  consider  it  in  conjunction  with  some 
of  them. 

First,  then,  it  may  be  remarked  that  a  great  difference  exists  between 
contracts  executed  and  executory.!  If  a  contract  has  been  carried  into  ex- 
ecution, and  the  application  is  to  a  court  of  equity  to  rescind  it,  that  court 
will  not  lend  a  ready  ear  to  the  complaint  of  inadequacy  of  the  considera- 
tion. To  set  aside  a  conveyance  requires,  it  is  said,  an  inequality  so  strong, 
gross,  and  manifest,  that  it  must  be  impossible  to  state  it  to  a  man  of  com- 
mon sense  without  producing  an  exclamation  at  its  inequality :  for  in  such 

*  A  bond  or  mortgage  is  prima  facie  evidence  of  debt,  but  if  the  circumstances  are  suspicious,  the 
party  must  prove  the  consideration.    Piddoch  vs.  Brown,  3  P.  Wms.  289. 

t  See  3  Ran.  507.  Doug.  467,  Lumley  ds.  Bonrdieu.  2  Evans' Poth.  394.  Mr.-Justice  Buller  ob- 
serves, "  there  is  a  sound  distinction  between  contracts  executed  and  executory,  and  if  an  action  be 
brought  with  a  view  to  rescind,  you  noust  do  it  while  the  contract  continues  executory,  and  then  it 
can  only  be  done  on  the  terms  of  restoring  the  other  party  to  hia  original  situation."  There  can  be 
no  partial  rescission  of  a  contract.    It  must  be  in  toto  or  not  at  all.    5  Leigh,  113. 

VOL.  2 — 54 


426  FRAUDS.  [  BOOK  ?. 

cases  the  court  proceeds  on  the  notion  of  fraud  :  and  it  is  obvious  thafc 
where  no  other  circumstances  conspire  to  establish  it,  the  inequality  must  be 
very  gross,  or  the  party  selling  cannot  be  said  to  be  in  the  power  of  the 
buyer.  But  there  is  a  great  difference  between  establishing  and  rescinding 
an  afrreement.  2  John. '23.  10  Vez.  292.  For  if  the  contract  be  execu- 
tory,°(i.  e.  yet  remains  to  be  executed,)  and  the  seller  refuses,  on  account 
of  the  hardness  of  the  bargain,  to  carry  it  into  execution,  if  the  price  be 
very  unreasonable  a  court  of  equity  will  not  force  him  to  do  so,  on  the  ap- 
plication of  his  adversary  ;  both  because  the  decreeing  a  specific  execution 
of  contracts  is  matter  of  discretion  in  the  court,  and  because  in  a  hard  case 
unless  the  party  who  seeks  to  perform  has  in  all  things  fulfilled  the  contract 
to  the  letter  on  his  part,  which  rarely  happens,  he  has  no  right  to  expect  a 
ricTorous  enforcement  of  it  in  his  favor.  Thus  we  see  that  where  there  is 
inadequacy  merely,  without  other  ingredients  in  the  case,  equity  is  not  dis- 
posed to  assist  either  party,  and  he  who  can  place  himself  on  the  defen- 
sive will  in  that  court  have  the  advantage. 

It  is  next  of  consequence  to  observe  that  there  ate  certain  sales  which 
from  their  very  nature  are  on.  the  one  hand  more  liable  to  be  attended  with 
iinmense  sacrifices  than  others,  while  on  the  other,  motives  of  public  policy 
imperiously  demand  that  they  should  be  cautiously  interfered  with.  Such- 
are  judicial  sales,  under  executions,  or  decrees  of  courts  of  chancery. 
Property  thus  exposed  is  always  liable  to  be  sold  at  grossly  inadequate  pri- 
ces, yet  if  such  sales  were  too  eagerly  set  aside,  all  confidence  would  soon 
be  lost  in  them — the  number  of  bidders  would  be  decreased,  and  the  evil 
would  be  magnified  by  injudicious  zeal  to  prevent  or  to  remedy  it.  Hence, 
ailhoufrh  in  extreme  cases  the  court  would  doubtless  interfere,  yet  it  does 
so  always  with  great  reluctance.  Hence,  also,  I  presume,  tlie  indisposi- 
tion to  set  aside  sales  at  auction  generally,  which  has  been  strongly  mani- 
fested by  the  present  Lord  Chancellor  of  Great  Britiain,  notwithstanding  a 
decision  of  Lord  Rosslyn,  who  refused  to  compel  the  completion  of  a  sale 
by  auction,  because  of  the  inadequacy  of  price.  7  Vez.  30,  35.  Other 
reasons  for  the  aversion  to  interfere  with  sales  at  auction  are  mentioned  by 
Sir  Samuel  Romily  in  argument ;   10  Vez.  298. 

On  the  other  hand,  there  are  other  sales  which  courts  of  equity,  from 
principles  of  public  policy,  readily  set  aside  upon  any  evidence  of  inequal- 
ity in  the  contract.  Such  are  sales  of  reversionary  interests  and  expectan- 
cies by  young  heirs,  (and  even  by  some  others,  2  Vern.  121,  3  P.  Wms. 
290,)  which  are  discountenanced,  not  only  because  they  open  a  door  for 
fraud,  but  because  they  are  pernicious  in  removing  one  of  the  strongest  sup- 
l)ort3  of  parental  authority  by  enabling  the  chilil  to  acquire  independence 
of  his  father.  3  P.  Wms.  290.  1  Mad.  97.  Such  cases  always  rest  on 
their  own  circumstances,  a?  the  courts  decline  establishing  definite  rules 
lest  they  be  evaded.  The  fact  of  the  heir  bning  unprovide<l  for;  the  un- 
certainty of  the  interest;  the  possible  risk  of  the  purchaser  by  the  death  of 
the  vctiilor  before  he  comes  into  possession,  and  the  acqniesence  of  the 
seller,  however  long,  if  his  situation  be  unchanged  in  relation  to  the  interest 
disposed  of,  will  prevail  but  little  in  the  j)urchaser's  favor.  Sug.  194,  195. 
A  bona  fide  sale  of  a  reversionary  interest,  whether  the  vendor  be  heir  or  not, 
is  valid,  however,  if  fraud  is  neitiier  proved  or  to  be  presumed  from  inade- 
quacy of  consideration,  or  oilier  circuinstances.  Ibid.  And  in  general 
where  tiiere  arc  not  other  motives  fur  setting  aside  sales  of  reversions,  mere 
inadequacy  will  not  sullice,  since  such  contracts  being  in  their  nature  con- 
tracts of  hazard,  no  criterion  is  alfordcd  whereby  the  court  can  accurately 
determine  their  value.     See  2  Leigh,  1 19. 

Having  made  these  |)rcliininary  remarks  wc  may  now  add  that  we  have 
no  certain  rule  by  which  the   inadequacy  of  a  consideration  can  be  asccr- 


m. 

CHAP.  21.]  FRAUDS.  '  427 

tained,  though  the  civil  law  held  no  consideration  inadequate  which  exceed- 
ed half  the  real  value  of  the  estate ;  and  there  are  not  wanting'  opinions 
favorable  to  the  adoption  of  that  as  a  criterion.  Sug.  107.  By  one  judge, 
i£ll:iO  for  an  estate  worth  £2000,  has  been  held  too  small  a  consideration 
to  support  a  bill  for  specific  performance,  and  tiiis  even  in  an  auction  case. 
7  Vez.  30.  By  another  £G000,  and  £1 1,000  more  on  the  death  of  an  old 
man  of  sixty-five,  was  thought  exorbiant  for  an  estate  worth  only  £10,000, 
and  he  both  refused  to  enforce  the  contract  at  the  instance  of  one  party,  or 
to  rescind  it  at  the  instance  of  the  other,  there  being  no  evidence  of  fraud, 
&c.  Sug.  190.  All  that  can  be  affirmed  herein  is,  as  before  stated,  that 
in  a  mere  naked  case  of  inadequacy  it  must  be  very  gross  to  induce  a  court 
to  set  aside  the  contract.     See  2  John.  C.  C.  1. 

But  though  this  is  the  case  where  inadequacy  is  the  sole  equity  set  up, 
yet  it  is  otherwise  where  there  are  other  circumstances  in  the  case.  Then, 
indeed,  inadequacy,  though  not  very  gross,  may  be  an  important  ingredient. 
As  where  there  has  been  an  industrious  concealment  for  the  purpose  of  ob- 
taining an  estate  at  a  grossly  inadequate  price;  Sug.  191;  or  where  the 
party  is  not  conusant  of  his  rights,  and  his  adversary  is;  Sug.  193;  or 
where  advantage  is  taken  of  the  distress  of  the  vendor;  Id. ;  or  he  is  under 
the  influence  of  the  buyer,  or  in  his  power;  or  he  is  greatly  intoxicated, 
even  though  it  be  not  by  the  contrivance  of  the  purchaser;  or  he  is  a  man 
of  notorious  imbecility  naturally  or  from  extreme  old  age,  and  there  are  any 
concurring  circumstances  of  trick  or  artifice  :  in  all  these  cases  the  inade- 
quacy of  the  consideration  is  justly  considered  as  an  imjjortant  fact  in  the 
establishment  of  a  fraud.     See  1  Mad.  212.     1  Mun.  527,  557. 

If  a  bargain  is  fair  and  the  consideration  adequate  at  the  time  of  the  con- 
tract, and  it  becomes  by  subsequent  events  very  advantageous  to  the  pur- 
chaser, the  vendor  cannot  complain.  As  if  a  woman  sells  her  dower  inter- 
est, worth  £1000,  for  an  annuity  of  £100  per  annum,  and  dies  the  first  year, 
still  the  court  will  compel  the  execution  of  the  contract,  for  it  was  in  its 
•character  a  cpntract  of  hazard.  See  3  Br.  C.  C.  605.  9  Vez.  246.  So  a 
compromise  of  a  suit  can  never  be  set  aside  upon  the  ground  that  the  party 
seeking  to  annul  it  had  the  clear  right,  or  that  the  consideration  of  com- 
promise was  inadequate,  provided  the  parties  are  fairly  apprised  of  their 
rights.  1  Mad.  215.  1  Br.  C.  C.  22.  1  Vez.  444.  2  Rand.  442..  444, 
1  P.  Wms.  727. 

Where  a  coHveyance  is  set  aside  for  inadequacy,  the  conveyance  stands 
as  a  security  for  the  purchase  money  and  interest,  (1  Mad.  99,)  and  the 
purchaser  is  allowed  for  permanent  improvements,  (Sug.  196,)  and  will  be 
charged  with  rents. 

5.  Underhand  agreements  are  also  relieved  against  in  equity.  As  if  a 
debtor  compromises  with  his  creditors,  and  one  being  obstinate  he  gives  to 
him  secretly  collateral  security  for  his  composition,  this  security  is  fraudu- 
lent and  invalid.  1  Mad.  220.  See  4  Barn.  &  Cres.  506.  So  where  he 
ostensibly  accepts  a  composition,  and  takes  part  of  his  debt  in  discharge  of 
the  whole,  in  order  to  enable  the  debtor  to  deceive  others,  but  proceeds  to 
take  security  for  the  unpaid  re^^idue  of  his  demand,  this  is  fraudulent  and 
void.  Ibid.  For  though  a  debtor  may  fairly  prefer  one  creditor  to  another, 
and  such  preference  will  be  recognized  by  courts  of  law  and  equity,  (Twine's 
case,  3  Co.  80.  3  Atk.  192,  -351.  7  Vez.  30-3,)  yet  this  should  be  done 
openly  and  above  board,  and  not  as  a  decoy  to  induce  other  creditors  to 
take  a  part  of  their  debts  in  lieu  of  the  whole. 

Under  this  head  of  underhand  agreements  are  also  usually  classed  mar- 
riage brokage  bonds,  bonds  for  procuring  offices  under  the  government,  and 
the'' like,  f  Mad.  227,  228.  But  they  come  more  properly  under  the  10th 
division  which  we  have  made  of  tiie  subject. 


428  FRAUDS.  [  BOOK  3. 

6.  Among  the  various  species  of  frauds  which  are  more  particularly  de- 
serving notice,  is  the  purchasing  with  notice  of  an  unrecorded  deed.  For 
althouo^h  the  statute  for  the  registering  of  deeds  provides  that  a  registered 
or  recorded  deed  shall  have  preference  of  an  unrecorded  though  prior  deed, 
yet  it  has  been  held  in  equity  that  though  the  prior  deed  be  not  recorded, 
yet  it  is  a  fraud  in  the  subsequent  purchaser  with  notice  of  the  prior  deed, 
to  attempt  to  acquire  what  by  means  of  that  notice  he  knows  rightfully  be- 
longs to  another  :  that  actual  notice  is  equivalent  to  the  notice  which  the 
statute  intended  to  give  him,  and  should  bind  him  as  much,  since  it  is  en- 
tirely unimportant  hoiv  he  gets  the  notice,  so  he  is  aware  of  the  fact  when 
he  deals  for  another's  property.  See  1  Fonb.  23.  2Fonb.  155.  New.  511. 
7  Cranch.  366.     Sug.  516,  and  the  numerous  cases  there  cited.* 

This  species  of  fraud  is  equally  committed  whether  one  purchases, — or 
takes  a  mortgage  on  property  with  notice  of  a  prior  incumbrance  not  regis- 
tered, on  the  same  property.  In  both  cases  the  prior  incumbrance  has  a 
preference ;  for  the  recording  acts  were  made  to  prevent  subsequent  pur- 
chasers from  being  prejudiced  by  ignorantly  buying  incumbered  property  : 
which  cannot  be,  where,  so  far  from  being  ignorant,  they  have  actual  notice 
of  the  incumbrance.  Sug.  511.  See  2  Mun.  129.  The  statute,  indeed, 
vests  the  legal  title  in  the  subsequent  purchaser  :  but  although  the  legal  title 
of  the  prior  incumbrancer  be  divested,  his  equitable  right  over  the  proper- 
ty remains.  2  Rand.  100.  But  it  is  said  that  the  proof  of  notice  must 
be  clear  and  undoubted,  and  that  mere  suspicion  of  notice  will  not  suffice. 
Sug.  512.  This,  indeed,  is  obvious,  since  the  ground  of  relief  is  fraud, 
which  must  always  be  proved,  and  cannot  be  presumed.  6  Mun.  42.  A. 
distinction,  however,  seems  indeed  to  have  formerly  prevailed  between  ac- 
tual and  constructive  notice  ;  holding  the  purchaser  bound  by  the  former 
but  not  by  the  latter.  The  distinction,  however,  as  applicable  to  this  sub- 
ject, seems  only  calculated  to  confound  ;  for  the  question  always  is,  whe- 
ther the  party  really  had  a  knowledge  of  the  existence  of  the  prior  incum- 
brance. This  knowledge  may  either  be  proved  by  direct  evidence,  or  by 
proof  of  other  facts  from  which  such  knowledge  may  justly  be  inferred: 
and  when  thus  proved,  even  by  circumstantial  evidence,  it  is  as  confidently 
taken  to  exist  as  if  proved  by  direct  evidence.  2  Rand.  101.  Now  a  no- 
tice proved  by  circumstantial  evidence  instead  of  direct  evidence,  is  the 
same  thing  as  constructive  notice  ;  so  that  constructive  notice  in  this  (as  it 
undoubtedly  is  in  all  other  cases)  is  sufficient,  provided  the  facts  from  which 
the  notice  is  deduced  are  sufficient  to  justify  the  conclusion  that  the  party 
really  knew  of  the  prior  deed  ;  for  when  that  is  the  case  the  constructive 
notice  amounts  to  the  same  thing  as  actual  notice,  because  it  establishes 
satisfactorily  to  the  mind  the  existence  of  such  actual  notice. 

In  connexion  with  this  doctrine  is  the  question  whether  a  lis  pendens,  or 
suit  depending  in  reference  to  the  right  in  question,  is  of  itself  sufficient 
notice  of  the  prior  incumbrance.  To  understand  this  we  must  first  suc- 
cinctly show  what  this  lis  pendens  is.  A  simple  instance  will  best  explain 
its  meaning. 

When  an  individual  has  instituted  a  proceeding  in  a  court  of  justice  for 
the  recovery  of  a  piece  of  property,  such  as  a  horse,  or  a  negro,  or  a  tract 
of  land,  or  for  the  purpose  of  subjecting  it  to  the  payment  of  a  debt,  the 
necessities  of  justice  require  that  no  alienation  of  the  property  by  his  ad- 
versary should  be  permitted  while  the  suit  is  depending  (lile  pendente;) 

*  So  in  case  of  a  second  mortgagee  who  has  notice  of  the  first  mortgage  which  is  not  recorded.  2 
Leigi),426. 

VVliethera  piirciiaser  or  incumbrancer  is  to  l)e  considered  as  affected  with  notice  hv  tlie  record  of 
a  deed,  seems  not  to  be  settled  with  us.  See  3  Leigli,  Doswell  »w.  Buchannan.  In  England,  a  bar- 
gain and  sale  passes  no  title  till  enrolment,  and  thus  the  subsequent  purchaser  havipg  acquired  the 
Ugnl  title,  cannot  be  aflected  with  fraud  except  by  express  notice.    See  Post,  440. 


CHAP.  21.]  FRAUDS.  429 

since  were  this  allowed,  the  defendant  might  continually  elude  his  pursuit, 
and  frustrate  his  efforts  by  a  transfer  of  his  right  to  another.  It  is  therefore 
established  as  a  fundamental  rule  of  all  courts,  that  whoever,  pendente  lite, 
purchases  the  corpus  or  subject  of  contest,  takes  subject  to  the  event  of  the 
suit.  Thus  we  have  seen  that  if  I  bring  detinue  against  A  for  a  slave,  and 
pendente  lite  he  sells  to  B,  I  am  not  obliged  to  bring  a  new  suit  against  B, 
but  may  proceed  in  my  action  against  A,  and  if  I  succeed  in  it,  B  can  ne- 
ver after  be  permitted  to  deny  my  right :  for  being  a  pendente  lite  purchaser, 
the  law  considers  him  as  standing  in  A's  shoes,  and  bound  to  abide  his 
fate.  In  this  sense,  then,  the  lis  pendens  is  notice  to  all  the  world.  "  The 
rule  is  founded  on  the  necessity  of  such  a  rule  to  give  effect  to  the  pro- 
ceedings of  justice."  The  necessity,  indeed,  is  so  obvious,  that  whether  the 
purchaser  had,  or  by  inquiry  might  have  had  notice  of  the  suit,  or  not,  its 
existence  and  applicability  is  equally  proper:  2  Vez.  &  Beame,  200.  2 
Ball  &  Beat.  167.  2  John.  441,  155,  158.  1  John.  566 ;  and  in  point  of 
fact  it  applies  to  cases  in  which  it  is  physically  impossible  he  should  know 
of  the  suit.  2  Rand.  102.  Yet  to  avoid  a  great  mischief  the  rule  is  uni- 
versal, though  particular  injury  may  sometimes  result;  and  every  purchaser 
pendente  lite  holds  the  property,  subject  to  the  execution  upon  the  judgment 
in  that  suit,  in  the  same  manner  the  defendant  would  have  held  it  if  no 
alienation  had  been  made.    Id.    Sug.  537.     2  John.  155,  158.    4  John.  39. 

At  law,  the  lis  pendens  exists  from  the  first  moment  of  the  day  on  which 
the  writ  issues.  In  chancery  it  never  exists  until  subpoena  served  and  bill 
filed :  but  when  the  bill  is  filed  it  then  relates  back  to  the  service  of  the 
subpoena,  and  binds  from  that  time  :  but  in  both  courts,  if  the  plaintiff  dis- 
continues, or  is  nonsuited,  or  dismisses  his  bill,  the  effect  of  the  lis  pendens 
is  gone.  And  in  equity  it  is  requisite  that  the  suit  should  be  in  a  full  course 
of  prosecution.  2  Fonb.  157.  Sug.  536.  For  the  doctrine  rests  in  theory 
upon  the  supposition  that  every  man  is  conusant  of  what  is  going  on  in  a 
court  of  justice  ;  and  it  is  carried  so  far  that  the  notice  of  the  lis  pendens 
ceases  the  instant  there  is  a  decree  ;  that  is  to  say,  no  person  is  affected  by 
the  doctrine  whose  purchase  is  subsequent  to  a  final  decree,  nor  is  a  decree 
notice  of  itself  to  a  purchaser.     Sug.  538. 

Having  said  thus  much  of  the  lis  pendens,  it  only  remains  to  add  here, 
that  it  has  lately  been  decided  that  a  lis  pendens  is  not  of  itself  such  notice 
of  a  prior  unregistered  mortgage  as  will  postpone  the  subsequent  mortgage. 
Newman  vs.  Chapman.  2  Rand.  104,  107.  19  Vez.  439.  The  reasons 
urged  in  support  of  the  decision  are  strong.  The  act  of  assembly  has  ex- 
pressly declared  the  first  mortgage  void  as  to  the  second,  because  it  is  un- 
recorded. The  legal  title  is  then  in  the  second  mortgagee.  Having  the 
law  in  his  favor  he  must  prevail,  unless  he  has  less  equity  by  reason  of  fraud 
on  his  part.  This  fraud,  if  it  exists,  consists  in  taking  the  second  mortgage 
with  notice  of  the  first :  and  this  notice  meant  by  the  law  is  actual  notice. 
But  if  the  second  mortgagee  swears  he  never  had  heard  of  the  suit,  it  would 
be  unfair  to  presume  tlie  contrary  unless  it  be  proved.  A  suit  may  well  be 
depending,  and  yet  a  party  deeply  interested  may  never  have  actually  heard 
of  it.  It  is,  indeed,  a  presumption  of  law  for  purposes  of  justice,  that  eve- 
ry man  knows  what  is  going  on  in  a  court  of  justice.  But  this  is  a  mere 
fiction  :  and  a  fiction  of  law  never  works  injustice. 

Yet  notwithstanding  the  strong  reasoning  of  the  court  in  support  of  this 
decision  in  the  case  of  Newman  vs.  Chapman,  it  does  appear  to  me  strange, 
that  a  mortgagor  may,  while  a  suit  is  depending  upon  a  mortgage,  elude  the 
demand  of  the  mortgagee  and  the  justice  of  the  court,  by  alienating  the 
corpus  or  subject  of  the  contest,  or  by  taking  up  money  on  the  mortgaged 
premises  to  their  full  value.     So  entire  a  subversion  of  one  of  the  funda- 


430  FRAUDS.  [  BOOK  3. 

mental  principles  of  jurisprudence  can  scarcely  have  been  contemplated  by 
the  legislature,  in  its  enaction  of  the  register  acts. 

7.  Fraud  in  obtaining  a  judgment,  (1  Vez.  289,)  or  decree,  (3  Br.  C.  C. 
74,)  or  the  probate  of  a  will,  (1  Vez.  290,)  or  letters  of  administration,  are 
all  subjects  of  relief  in  equity:  1  Mad.  2-37  :  but  they  will  be  touched  up- 
on when  we  come  to  speak  of  injunctions. 

8.  Another  species  of  fraud  which  it  is  proper  to  notice,  are  frauds  upon 
auctions  :  where,  with  a  viev;  to  enhance  the  price  of  articles,  puffers  or 
fictitious  bidders  are  employed,  that  excitement  may  be  produced  by  appa- 
rent competition,  and  real  bidders  stimulated  by  the  contest.  After  much 
■difference  of  opinion  as  to  the  legality  of  employing  private  bidders,  (see 
Cow.  395.  3  Vez.  628.  6  T.  R.  642.  12  Vez.  477,)  we  are  told  that  it 
is  clearly  settled  that  a  bidder  may  be  privately  appointed  by  the.  owner  to 
prevent  the  estate  from  being  sold  at  an  undervalue  ;  and  it  has  been  deci- 
ded that  if  there  are  real  bidders  at  a  sale,  it  must  be  supported  although 
the  bid  before  the  last  be  fictitious.  Moreover  if  notice  is  given  that  there 
are  private  bidders,  the  private  bidding  will  in  no  case  afTect  the  sale.  Sug. 
19.     1  Mad.  257. 

Coranected  with  this  subject  is  the  fraud  of  two  persons  agreeing  not  to 
bid  against  each  other,  in  order  to  buy  the  articles  cheap  and  share  them  : 
which  agreement  has  been  decided  in  New-York  to  be  against  public  poli- 
<cy,  and  void.     6  John.  Rep.  194. 

It  may  not  be  amiss  here  to  notice  an  opinion  entertained  by  some,  that 
.a  sale  at  auction  under  an  execution  or  decree,  is  not  good  unless  there  be 
snore  than  one  bidder  :  that  there  must  be,  in  short,  bid  above  bid,  to  con- 
stitute such  a  bidding  as  will  come  within  the  terms  "  shall  sell  to  the  high- 
est bidder."  I  am  not  aware  of  any  decision  upon  this  point.*  I  am,  how- 
ever, inclined  to  think  the  objection  not  valid.  On  such  occasions  the  arti- 
cle sold  is  offered  by  public  advertiseiment  to  the  whole  country,  and  the 
■only  bidder  may  therefore  be  well  regarded  as  the  highest  bidder,  and  with- 
in the  meaning  of  the  terms.  The  circumstance  of  there  being  but  one 
bidder,  combined  with  others,  such  as  bad  weather,  circumscribed  adver- 
tisements, &c.  might  indeed  furnish  sufficient  grounds  for  setting  aside  a 
sale,  but  would  not,  I  conceive,  suffice  per  se. 

Besides  the  frauds  already  mentioned,  the  following  are  also  worthy  of 
particular  remark,  viz.  : 

9.  Frauds  on  the  rights  of  marriage. 

10.  Frauds  on  creditors. 

11.  Frauds  on  powers;  the  failure  to  execute  them,  illusory  appoint- 
ments, &c. 

12.  Fraudulent  indulgence  by  a  creditor  to  his  debtor  to  the  prejudice  of 
the  surety. 

But  as  the  three  first  subjects  have  been  treated  of  in  a  former  part  of 
these  lectures,  and  the  last  will  fall  under  another  head,  nothing  will  be 
said  of  them  here. 

I  shall  therefore  here  conclude  the  bead  of  fraud,  with  the  following  rules 
or  principles : 

1.  Infancy  and  coverture  furnish  no  excuse  for  fraud,  and  are  no  protec- 
tion from  relief  sought  against  it.  1  Fonb.  71,  152.  1  Wash.  299.  Sug. 
522.  Yet  where  a  fraud  is  committed  by  the  husband,  the  wife  in  partici- 
pating in  it  seems  to  be  considered  as  sub  potestale  viri,  and  her  rights  are 
therefore  not  to  be  impaired  by  reason  of  it.     Gilm.  209. 

2.  Interests  obtained  through  the  fraud  of  another  person  cannot  be 
maintained.  "  Although  the  party  benefitted  was  no  party  to  the  imposi- 
tion, nor  had  any  undue  influence  over  the  party  deceived,  yet  he  takes  the 

*  See  what  is  said  argii :  4  Rand.  201,  and  by  Judge  Carr,  Id.  206. 


CRAP, 


21.]  DISCOVERY.  431 


subject  of  the  contract  tainted  and  infected  with  the  undue  influence  snd 
imposition  of  the  person  procuring  the  deed.  Let  the  hand  which  receives 
be  ever  so  chaste,  if  it  comes  through  a  polluted  channel,  the  obligation  of 
restitution  will  follow."  Wilm.  64,  cited  14  Vez.  289.  2  Vez.  627.  This 
doctrine  is  fully  sustained  by  the  decision  of  the  supreme  court  of  the  Uni- 
ted States  in  the  case  of  Marbury  against  the  Bank.     Wheaton's  Reports. 

VI.  OF  "DISCOVERY."* 

The  jurisdiction  of  equity  in  cases  where  a  discovery  is  essential  to  the 
purposes  of  justice,  and  the  plaintiff  has  a  right  to  demand  it,  may  be  af- 
firmed to  be  universal.  1  Call,  382.  It  was  probably  very  early  exercised 
by-a  tribunal  the  head  of  which  in  early  times  was  an  ecclesiastic,  the  mem- 
ber of  a  church  that  professed  an  unlimited  control  over  the  conscience. 

Every  bill  requiring  an  answer  is  more  or  less  a  bill  of  discovery.  1  Mad. 
160.  And  it  is  the  privilege  as  well  as  the  duty  of  the  defendant  in  gene- 
ral to  answer. 

Bills  either  pray  a  discovery  merely,  without  praying  relief,  or  they  pray 
both  discovery  and  relief.  The  first,  however,  possessing  a  more  distinc- 
tive character  than  the  latter,  will  be  the  principal  subject  of  remark  here, 

I.  As  to  mere  bills  of  discovery.  These  are  in  their  nature  only  ancil- 
lary to  the  proceedings  of  other  courts,  or  of  the  court  of  equity  in  some 
other  cause  ;  and  it  will  be  proper  to  consider  in  the  first  place  for  whom  such 
a  bill  lies.  Here  it  is  obvious  that  where  there  is  a  personal  disability  m 
the  plaintiff  to  sue,  he  cannot  have  a  discovery.  As  where  an  infant,  feme 
covert,  or  lunatic  sue  without  a  guardian  or  committee.  Coop.  Eq.  192. 
So  if  he  has  no  title  to  the  character  in  which  he  sues,  and  in  which  cha- 
racter only  he  would  have  a  right  to  the  discovery  ;  as  if  he  sues  as  execu- 
tor of  a  decedent,  demanding  a  discovery  of  his  estate,  when  in  truth  he  is 
no  executor.  So  if  he  has  no  interest  in  the  subject,  or  it  be  of  such  a 
nature  that  no  action  will  lie  for  it  in  any  court  whatever,  his  bill  will  not 
be  entertained :  for  this  ancillary  jurisdiction  is  exercised  for  purposes  of 
justice,  not  of  vexation  ;  it  results  from  a  desire  to  assist  him  who  is  wrong- 
ed, and  from  no  wish  to  feed  the  malignity  of  the  liligous,  or  to  pander  to- 
tbe  bad  passions  of  the  suitor.  It  must  therefore  cither  appear  that  an  ac- 
tion is  brought,  or  that  the  necessary  effect  of  the  case  stated  by  the  bill  is 
the  right  to  bring  an  action.     Coop.  194.     1  ]Mad.  162. 

II.  Against  whom  does  a  bill  of  discovery  lie  ?  It  does  not  lie  against  a 
defendant  who  is  in  no  wise  answerable  to  the  plaintiff  in  reference  to  the 
subject  of  discovery.  It  does  not  lie  against  a  married  woman  for  a  disco- 
very to  charge  her  husband;  nor  against  a  solicitor  to  compel  him  to  disco- 
ver secrets  entrusted  to  him  by  his  clients  ;  for  these  he  can  neither  be  com- 
pelled nor  permitted  to  disclose.  Coop.  196.  4  Mun.  27-3.  Nor  does  it 
Jie  against  a  mere  witness,  (1  Vez.  426.  2  Vez,  493.  2  Br.  C.  C.  242,) 
except  in  the  case  of  a  corporation,  where,  inasmuch  as  the  corporation  an- 
swers under  its  corporate  seal,  there  is  no  effectual  discovery  except  through 
some  officer  of  the  corporation,  who  is  made  a  party  for  the  purpose  of  ar- 
riving at  the  facts.     1  Mad.  171.     2  Mad.  147.     Mitf.  8.     15  Vez.  164. 

III.  Of  what  and  for  what  does  a  bill  of  discovery  lie.''  And  here  we 
shall  in  some  instances  proceed  rather  by  shewing  of  and  for  what  it  does 
not  lie,  since,  unless  there  be  a  reason  to  the  contrary,  a  discovery  is,  in  gen- 
eral, matter  of  right.     First,  then,  a  bill  of  discovery  will  not  lie  where  from 

*  Tlie  power  to  enforce  a  discovery  upon  filing  interrogatories  is  civen  to  courts  of  law.  J830,  ch. 
11,  §  63,  69.  The  right  of  tiie  inlorrogator  to  waive  the  discover}-  when  obtained,  or  lo  contradict  it 
l)V  evidence  aliund'-,  and  the  weight  to  which  the  answers  to  interrogatories  are  entitled,  liave  re- 
cently lieen  the  siibjeet  of  much  earnest  consideration  in  ilie  case  of  McFarland  vs.  Hunter  at  Lew- 
ibbuig  bulllie  case  is  yet  under  aJviseuicut. 


432  DISCOVERY.  [book  3. 

its  face  it  appears  to  be  immaterial ;  that  is  to  say,  the  discovery  relates  to 
a  matter  for  which  there  can  be  no  remedy,  or  is  impertinent  or  unimpor- 
tant to  the  ends  of  justice.  It  must  be  remarked,  however,  that  where  a 
bill  is  merely  for  a  discovery,  its  materiality  will  not  be  very  nicely  scruti- 
nized ;  for,  as  in  all  bills  for  a  discovery  merely,  the  complainant  must  pay 
costs,  it  can  scarcely  be  presumed  that  he  would  prosecute  a  suit  for  vexa- 
tion, the  burden  of  which  would  fall  on  himself  and  not  on  his  adversary  : 
and  it  is  fair  to  conclude  he  deems  the  discovery  important  to  his  case — a 
matter  of  which  it  is  chiefly  for  him  to  judge.  1  Br.  C.  C.  69.  4  John. 
412.  Secondly,  it  is  said  that  to  give  a  court  of  equity  jurisdiction  it  is  not 
sufficient  to  charge  that  certain  facts  are  known  to  the  defendant  and  ought 
to  be  disclosed  by  him,  but  it  should  be  averred  that  the  plaintiff  is  unable 
to  prove  the  facts  by  other  testimony.  2  Mun.  290.  7  Cranch,  69.  A*c- 
cordingly  a  bill  to  discover  the  name  of  a  negro  child  whose  mother's  name 
was  known  to  the  plaintiff,  was  dismissed.  4  H.  &  M.  478.  Nor  will  this 
bill  lie  to  discover  the  tenant  of  the  freehold  in  order  to  bring  an  action  ;  or 
the  name  of  a  party,  or  whether  he  exists,  in  order  to  make  him  a  party,  for 
these  may  be  known  without.  1  Mad.  171.  Yet  it  is  said  a  bill  of  dis- 
covery lies  in  aid  of  proceedings  in  ch^nzGxy  to  deliver  the  party  from  the 
necessity  of  obtaining  evidence  ;  I  Mad.  161  ;  and  the  dictum  of  lord  Hard- 
wicke  sustains  the  position.  2  Vez.  398.  We  must  consider  it,  however,  I 
presume,  as  applying  strictly  to  cases  of  mere  bills  of  discovery,  and  not  to 
bills  praying  both  a  discovery  and  relief.  Thirdly,  a  bill  lies  in  behalf  of  a 
creditor  against  the  personal  or  real  representative  of  a  decedent  for  the 
discovery  of  assets  out  of  which  his  debt  may  be  discharged.  1  Wash. 
168.  6  Mun.  29.  2  H.  &  M.  8.  2  Cr.  407.  6  Vez.  792.  1  Mad.  169, 
170.  Fourthly,  a  bill  for  a  discovery  does  not  lie  to  compel  a  purchaser 
for  a  valuable  consideration,  and  without  notice  of  the  plaintifTs  title,  to 
make  a  discovery  which  may  affect  his  own  title  ;  and  this  is  said  to  be  an 
infallible  rule  :  1  Mad.  170.  2  Vez.  jr.  154:  for  such  a  purchaser  having 
equal  equity  with  any  other  person,  and  therefore  an  equal  claim  to  the 
protection  of  the  court,  he  ought  not,  upon  the  principle  of  that  court,  to 
be  compelled  to  weaken  or  impeach  his  title.  2  Fonb.  486.  3  Br.  C.  C. 
264.  4  Vez.  66.  13  Vez.  251.  Nor  does  it  lie  for  an  heir  at  law,  for  the 
inspection  of  deeds  in  the  devisee's  hands.  Coop.  58.  Nor  does  it  lie 
against  a  jointress  to  discover  writings,  unless  the  party  agrees  to  confirm 
the  jointure.  1  Vent.  198.  1  Vez.  jr.  76.  2  Vez.  450.  In  like  manner, 
it  is  said,  no  bill  lies  to  compel  one  whose  land  lies  contiguous  to  mine,  to 
discover  the  boundaries  in  his  deeds,  (2  Fonb.  488,)  for  that  would  be  to 
force  a  man  to  injure  and  weaken  his  own  possession.  Yet  as  it  is  the  du- 
ty of  the  tenant  to  keep  the  boundaries,  the  court  will  assist  a  landlord  by 
compelling  the  tenant  to  discover  them.     6  Vez.  293. 

Lord  Hardwicke  lays  it  down  that  any  person  in  possession,  as  tenant  or 
otherwise,  may  file  a  bill  for  the  discovery  of  the  title  of  one  bringing  an 
ejectment  against  him,  to  have  it  set  out  and  seen  whether  the  title  be  not 
in  another,  even  though  he  himself  is  a  wrongdoer  against  every  body  ;  1 
Vez.  249;  an  exercise  of  jurisdiction  which  I  do  not  understand  how  to 
reconcile  with  equitable  notions.  If,  indeed,  his  possession  were  rightful, 
it  would  be  otherwise  :  for  it  seems  but  reasonable  that  every  man  should 
have  the  benefit  of  a  discovery  in  support  of  his  right,  provided  his  conduct 
has  been  fair.  The  refusal  to  allow  a  discovery  in  many  cases,  because  the 
defendant  stands  upon  his  legal  right,  savours  indeed  too  much  of  techni- 
cality for  a  tribunal  which  regards  only  the  substance  of  things;  and  the 
objection  that  a  man  ought  not  to  be  compelled  to  furnish  evidence  to  im- 
peach his  own  title,  comes  with  an  ill  grace  from  a  court,  many  of  whose 


CHAP.  21.]  DISCOVERY.  433 

decrees  against  defendants  rest  mainly  upon  what  they  have  confessed  to 
their  own  prejudice. 

To  the  rule  we  have  been  just  stating  there  seem  to  be  a  few  exceptions. 
Such  are  those  of  a  devisee  demanding  from  the  heir  a  discovery  of  the 
deeds,  and  of  a  doweress  who  claims  a  discovery  of  defendant's  title.  Wil- 
liams vs.  Lamb,  3  Br.  C.  C.  264.  Coop.  59.  1  Mad.  171.  The  reason 
given  in  the  latter  case,  that  the  rule  does  not  apply  because  the  widow 
comes  in  upon  a  legal  right,  would  seem  to  admit  the  discovery  in  all  other 
cases  where  the  claim  was  legal  and  not  equitable.  But  the  true  reason 
seems  to  be  that  the  doweress  admits  the  title  in  her  adversary,  and  so  far 
from  seeking  to  impeach  it,  she  is  not  less  interested  than  he  in  maintain- 
ing that  he  has  the  title.  Moreover  the  court  of  equity  having  taken  cog- 
nizance of  dower  cases  (although  depending  upon  legal  rights)  it  would 
seem  to  follow,  of  course,  that  they  must  inquire  into  the  title. 

A  bill  of  discovery  also  lies  against  a  lessee,  but  not  against  an  assignee 
(he  being  a  purchaser)  to  compel  him  to  discover  whether  his  lease  has  ex- 
pired or  not.     1  Mad.  166.     2  Fonb.  487. 

Fifthly  ;  we  have  already  spoken  of  the  jurisdiction  in  the  case  of  lost 
deeds,  or  deeds  in  possession  of  another,  in  which  cases  the  courts  of  equi- 
ty not  only  compel  a  discovery,  but  give  relief.  It  may  be,  however,  that 
the  party  may  wish  a  discovery  of  deeds  without  relief ;  and  where  he  has 
title  to  them  his  right  to  a  discovery  is  unquestionable  ;  as  in  the  case  above 
of  a  devisee  who  having  title  to  the  estate,  may  compel  the  heir  to  disclose 
the  title  and  the  deeds  which  are  the  muniments  of  that  title.  See  1  Mad. 
160,  162,  165.  Hence  it  is,  that  although  where  the  titles  of  the  plaintiff 
and  defendant  are  in  conflict,  the  plaintiff  has  no  right  in  general  to  look 
into  the  defendant's  title,  yet  it  is  otherwise  where  the  same  deed  is  part  of 
the  defendant's  title  as  well  as  the  plaintiff's.     13  Vez.  252. 

Sixthly  ;  a  bill  of  discovery  will  not  lie,  it  is  said,  to  enable  a  party  to  ob- 
tain a  confession  from  his  adversary  so  as  to  maintain  an  action  of  tort ; 
and  this  most  probably  because  chancery  has  no  jurisdiction  of  torts  more 
than  of  crimes,  and  never  lends  its  aid  to  enforce  what  is  in  the  nature  of 
a  punishment.  1  Fonb.  4.  That  this  is  the  true  reason,  would  seem  ob- 
vious from  the  bill  of  discovery  being  entertained  to  enable  a  party  to  sus- 
tain an  action  for  damages  in  any  matter  of  the  nature  of  contract,  as  in 
the  case  of  a  lighter  overset  by  negligence,  for  which  the  lighter-man  was 
answerable  as  a  common  carrier,  and  for  which  he  might  have  been  sued 
either  in  assumpsit  as  upon  a  contract,  or  in  a  case  as  for  a  tort.  See  1  Mad. 
167.     2  Fonb.  482. 

Lastly  ;  where  a  discovery  may  possibly  subject  the  defendant  to  a  penalty 
or  forfeiture,  or  render  him  liable  to  a  criminal  prosecution,  or  compel  him 
to  disclose  his  own  turpitude,  the  following  principle  prevails.  If  the  pe- 
nalty or  forfeiture  which  the  defendant  v^ill  be  in  danger  of  incurring  by  the 
discovery  accrues  to  the  plaintiff,  and  it  is  in  his  power  to  waive  it  and  en- 
tirely to  exonerate  the  defendant,  he  is  entitled  to  the  discovery  he  asks 
upon  offering  to  waive  the  penalty,  which  he  should  do  by  his  bill.  But 
unless  he  waives  it  he  shall  not  have  the  discovery.  In  like  manner,  if  the 
penalty  goes  to  himself  and  another,  and  he  procures  an  entire  waiver  of 
it,  he  may  have  the  discovery  ;  but  unless  all  those  who  claim  any  part  of 
the  penalty  or  forfeiture  concur  in  waiving  it,  the  discovery  will  not  be  en- 
forced.    1  Mad.  173.     4  John.  432.     Mitf.  157,  160. 

IV.  We  come  to  consider  the  manner  ;  how  or  what  is  necessary  in  filing 
a  bill  of  discovery.  And  here  it  must  be  remarked  first,  that  where  a  party 
brings  his  bill  in  equity  to  set  up  a  lost  bond,  deed,  or  other  instrument, 
praying  a  discovery  and  seeking  relief,  it  is  necessary  that  he  should  attach 
to  his  bill  an  affidavit  of  the  loss  or  other  circumstance  upon  which  the  ju- 
voL.  2 — 55 


434  DISCOVERT.  [book  ^ 

risdiction  rests,  such  as  the  destruction  or  purloining  of  the  instrument,  &c. 
3  Leio^h,  58.  But  where  he  comes  into  court  for  a  discovery  merely,  there 
such  affidavit  is  not  required  to  be  appended  to  the  bill,  for  as  he  must  pay 
the  costs  of  the  mere  bill  of  discovery  according  to  the  established  rule  of 
the  court,  it  is  a  fair  presumption  that  he  would  not  have  brought  his  bill  if 
he  had  not  really  sustained  the  loss.  4  John.  294.  1  Mad.  162.  1  John. 
R.  479,  Laight  vs.  Morgan. 

As  to  the  frame  of  bills  of  discovery,  it  seems  that  where  the  plaintiff  is 
entitled  only  to  a  discovery,  he  should  bo  careful  not  to  pray  relief,  since 
that  will  subject  his  bill  to  demurrer:  though  it  is  not,  on  the  other  hand, 
true,  that  if  the  bill  prays  relief  as  well  as  discovery,  and  the  discovery  ia 
auxrliary  to  the  relief,  a  demurrer  to  the  discovery  alone  will  defeat  the  whole 
bill.     1  Mad.  175. 

As  to  parties  in  bills  of  discovery  merely,  none  other  is  necessary  than  he 
from  whom  the  discovery  is  sought ;  but  if  relief  is  prayed  it  is  otherwise. 
1  H.  &  M.  330. 

V.  As  to  the  time  when  a  mere  bill  of  discovery  should  be  brought  as 
auxiliary  to  the  proceedings  in  another  suit,  it  has  been  decided  that  it  does 
not  lie  after  a  verdict.  1  Veru.  176.  6  Ran.  129.  Indeed  it  is  obvious 
that  to  give  the  discovery  after  a  verdict,  without  giving  relief  by  directing 
a  new  trial  or  injoining  the  judgment  at  law,  would  be  entirely  futile.  Yet 
we  shall  find  under  another  head  that  there  was  formerly  with  us  no^^more 
common  head  of  equity  than  that  of  giving  a  discovery  even  after  verdict, 
and  granting  relief  by  directing  a  new  trial  or  injoining  a  }iiidgraent  which 
has  been  unfairly  obtained. 

VI.  In  some  respects  this  bill  is  anomalous;  for  the  defendant  cannot 
move  to  dismiss  it  for  want  of  prosecution  :  perhaps  because  he  has  noth- 
ing to  do  but  to  answer,  which  he  may  do  without  any  prosecutio7i  of  his  bill 
by  the  plaintiff,  and  perhaps  also  because,  as  the  plaintilT  pays  the  costs  in 
any  event,  it  is  to  his  own  prejudice  exclusively  not  to  ])rosecute.  More- 
over the  cause  always  ends  with  the  answer,  unless  the  plaintiff  chooses  to 
except  to  it  as  insufficient ;  for  an  answer  is  the  only  object  of  the  bill ;  and 
if  the  plaintiff  does  not  think  proper  to  except,  00  further  proceeding  can 
be  necessary.  Such  a  bill  is  therefore  never  brought  to  a  hearing,  but  after 
answer,  if  the  plaintiff  is  satisfied,  he  moves  that  the  cause  be  "struck 
out  of  the  paper,"  that  is,  (with  us,)  be  struck  from  the  docket  :.  for  a  bill 
of  discovery  is  never  dismissed,  the  very  terms  of  dismissal,  according  to 
strict  technicality,  setting  forth  "  that  the  court  sees  no  cause  to  relieve,"  a 
mode  of  expression  inai)propriate  to  a  bill  which  asks  no  relief.  See  3  Br. 
C.  C.  375.     1  Mad.  178. 

It  is  obvieus,  too,  that  if  the  defendant  dies  before  he  has  answered,  the 
suit  abates  and  can  never  be  revived,  since  its  object  can  no  longer  be  at- 
tained. It  also  abates  without  the.  power  of  revival,  even  after  answer,  by 
the  marriage  of  a  female  phiintiii',  so  that  in  such  case  the  defendant  cannot 
recover  his  costs:  a  detenuinntion  which  secn).'>  unreasonable,  and  was  re- 
luctantly followed  by  Lord  Eldou.  Perhaps  with  us  it  may  be  otherwise, 
under  our  statutes  of  abatement. 

VII.  As  to  costs.  The  general  rule  is,  as  already  intimated,  that  on  a 
rnere  bill  of  discovery  the  plaintiff  must  pay  all  costs;  for  as  the  suit  is  exclu- 
sively for  his  benofil — as  it  settles  no  controversy,  and  the  defendant  does 
not  therefore  acquire  even  that  advantage  from  it,  it  is  but  reasonable  the 
plaintiff"  should  pay  all.  To  this  rule,  however,  there  are  exceptions:  as 
where  a  bill  prays  a  discovery,  and  commissions  also  to  examine  testimony, 
if  the  defendant  does  not  content  himself  with  a  cross  examination,  but  ex- 
amines witnesses  in  chief,  each  party  pays  his  own  costs,  for  in  this  case 
both  make  advantage  from  the  case  by  taking  their  testimony.     Moreover, 


csiAP.  21.  J  TRUSTS.  435 

where  before  filing  his  bill  the  plaintiff  demands  a  discovery  which  he  has  a 
right  to,  and  which  the  defendant  refuses  to  make,  but  drives  him  to  the 
costs  of  a  bill,  the  plaintiff  is  not  bound  to  pay  defendant's  costs.  1  Vez. 
423. 

We  come  next  to  say  a  few  words  as  to  bills  which  ask  for  relief  as  well 
as  discovery.  The  necessity  for  a  discovery  is  always  of  itself  sufficient 
ground  of  equitable  jurisdiction  in  any  case  :  and  although  the  subject- 
matter  of  contest  be  not  appropriate  for  its  jurisdiction,  the  court  will  pro- 
ceed to  decide  it ;  for  it  is  a  maxim  with  equity  that  when  it  once  has  ju- 
risdiction of  a  case  for  any  cause,  it  will  make  an  end  of  it,  instead  of  turn- 
ing the  parties  round  to  a  court  of  law  to  run  a  new  race  of  litigation  ;  and 
this  although  if  such  discovery  had  not  been  necessary,  relief  might  have 
been  had  at  law.  1  Mun.  63,  98.  But  here  we  must  observe  that  the  want 
of  discovery  must  not  be  mere  matter  of  pretext  to  translate  the  jurisdic- 
tion from  the  proper  tribunal  to  the  court  of  equity:  for  if  it  appears  on  the 
face  of  the  bill  that  the  discovery  was  asked  in  reference  to  matters  of 
which  the  party  might  just  as  easily  derive  information  from  other  sources; 
1  Mad.  171  ;  and  that  it  is  not  necessary  ;  1  Call,  382;  or  if,  in  order  to  give 
jurisdiction,  the  bill  makes  a  mere  colorable  suggestion  that  a  discovery  ia 
wanting,  the  defendant  may  in  the  two  first  cases  demur  to  the  bill,  and 
in  the  last  he  may  by  plea  deny  the  fact  suggested,  and  unless  it  be  proved 
the  jurisdiction  will  not  be  sustained.  1  Call,  372.  Nay,  if  the  on/y  ground 
of  jurisdiction  be  the  want  of  discovery,  and  the  defendant  denies  the  alle- 
gations, the  plaintiff  cannot,  by  proof  derived  from  other  sources,  establish 
his  case.  For  though  by  proof  he  should  show  a  just  demand  against  the 
defendant,  the  proof  would  exactly  in  the  same  degree  demonstrate  that 
he  did  not  want  a  discovery,  and  that  therefore  that  ground  of  jurisdiction 
fails.  See  2  3Iun.  290.  7  Cranch,  09,  89.  6  Ran.  125,  519.  In  such 
ease,  to  use  a  strong  but  quaint  expression,  (6  Mun.  545,)  "  if  he  proves 
his  case  he  proves  himself  out  of  court;"  in  other  words,  his  own  proof 
shews  he  has  no  business  in  a  court  of  equity. 

VII.  OF  "TRUSTS." 

The  nature  of  uses  and  trusts  having  been  already  explained  to  the  stu- 
dent pretty  much  at  large,  I  shall  not  here  again  dilate  upon  that  subject; 
but  referring  him  to  the  distinctions  which  have  been  pointed  out  between 
trusts  and  legal  estates,  I  shall  proceed  to  state  some  of  the  general  doc- 
trines of  equity  in  relation  to  the  former. 

In  recognizing  the  existence  of  a  new  species  of  interest  unknown  to  the 
early  ages  of  the  common  law,  there  was  no  design  to  abrogate  the  princi- 
ples, or  to  change  the  laws  which  govern  real  property,  except  in  the  par- 
ticular instances  that  gave  rise  to  the  introduction  first  of  uses  and  after- 
wards of  trusts.  Thus  although  the  interest  of  the  cestui  que  trust  was  held 
distinct  from  the  legal  estate,  it  was  never  contemplated  that  the  laws  of 
descent  which  prevailed  as  to  the  one  should  be  altered  as  to  the  other ;  and 
indeed  the  courts  of  chancery  adopting  it  as  a  maxim  that  "equity  follows 
the  law,"  established  in  relation  to  trusts,  a  rule  that  they  siiould  be  govern- 
ed by  the  same  law,  and  be  considered  within  the  same  reason  as  legal  es- 
tates. 2  P-  Wms.  645.  1  Fonb.  395.  It  must  be  admitted,  indeed,  that 
there  are  many  exceptions  to  this  rule,  but  it  is  nevertheless  to  be  taken  as 
the  general  principle,  controlled  by  such  modifications  as  the  court  itself,  in 
the  lapse  of  more  than  a  century,  has  thought  proper  to  introduce. 

Another  rule  equally  deferential  to  the  courts  of  law,  is  that  the  trust  shall 
follow  the  legal  estate,  and  be  merged  in  it  whenever  they  unite  in  the  same 
person  in  the  same  right.    Thus  if  A  devise  lands  to  B,  his  wife,  in  trust 


436  TRUSTS.  [  BOOK  3. 

for  C,  their  son  ;  during  the  life  of  B  tlie  trust  subsists  distinct  from  the  le- 
gal estate.  But  if  B  dies  and  the  legal  estate  descends  on  C,  the  equita- 
ble estate  is  at  once  merged  in  the  legal,  and  is  gone  forever;  and  the  in- 
terest of  C  is  no  longer  subject  to  those  peculiar  doctrines  which  are  applied  to 
trust  estates  as  contra-distinguished  from  legal  titles.  A  very  strong  in- 
stance of  this  has  been  more  than  once  referred  to.  As  if  in  the  case  just 
put,  C  the  son  dies  before  B,  and  under  twenty-one  years  of  age.  Here 
his  equitable  estate  will  descend  to  his  paternal  relations,  from  whom  he 
derived  it,  and  neither  B  nor  any  of  her  blood  shall  have  it.  But  if  B  dies 
first,  so  that  the  legal  estate  descends  from  heron  C,  and  becomes  united 
with  the  equitable  title,  and  then  C  dies  under  age,  the  paternal  relations 
will  be  excluded,  and  the  maternal  kindred  will  take  the  estate  ;  the  legal 
title  having  been  derived  from  the  mother,  although  the  beneficial  interest 
came  from  the  father.  1  John.  417.  Though  I  have  more  than  once  inti- 
mated a  doubt  as  to  the  correctness  of  this  decision,  that  doubt  has  not  ari- 
sen from  any  question  as  to  the  truth  of  the  general  principle,  but  of  the  pro- 
priety of  its  application  to  the  construction  of  that  clause  of  the  act  of  de- 
scents which  relates  to  infants  ;  and  which  obviously  intended  that  the  es- 
tate should  go  to  that  branch  from  which  the  real  or  beneficial  interest  had 
been  derived.  The  general  principle  is  well  established,  and  is  applied,  and 
perhaps  very  properly  applied,  to  questions  of  descents  in  England.  Doug. 
771.  1  Br.  364.  3  Vez.  1-26,  339.  2  Vez.  jr.  2G1.  It  has,  nevertheless, 
been  somewhat  modified  ;  since  we  are  told  that  notwithstanding  the  union 
of  the  two  estates,  yet  when  for  the  purposes  of  justice,  or  to  answer  some 
beneficial  purpose,  it  is  necessary  that  the  equitable  estate  should  be  still 
considered  as  subsisting,  it  will  be  so  considered.  6  John.  C.  R.  417.  5 
John.C.  R.35.  3  John.  56.  3  Vez.  127.  2  Vez.  jr.  261.  18  Vez.  384. 
As  where  A  and  B  have  mortgages  on  C's  land,  and  C  afterwards  devises 
to  A.  Notwithstanding  the  union  of  the  legal  and  equitable  title  in  A,  his 
mortgage  will  be  considered  as  still  subsisting,  so  as  to  retain  to  him  any 
advantage  his  lien  may  have  over  that  of  B  :  6  John.  393,  424.  18  Vez. 
384  :  since  it  would  be  unreasonable  that  by  the  devise  he  should  perhaps 
be  made  a  loser  of  his  debt.  In  like  manner  it  is  decided  that  where  the 
owner  of  a  mortgaged  article  pays  off"  the  mortgage,  and  takes  an  assign- 
ment of  it,  he  may,  if  he  chooses,  keep  alive  the  charge  notwithstanding  its 
union  with  the  fee,  provided  the  purpose  .is  innocent,  and  his  doing  so  will 
be  injurious  to  no  one.     18  Vez.  384.     6  John.  395. 

It  has  been  already  frequently  observed  that  the  cestui  que  trust  is  consi- 
dered the  real  owner  of  the  estate.  The  equitable  estate  which  is  vested 
in  him,  it  is  said,  "  is  the  mere  creature  of  the  court  of  equity,  and  subsists 
in  idea  only  as  to  any  legal  consequences  that  might  result  from  the  posses- 
sion of  it,  but  totally  distinct  from  the  legal  estate."  3  Vez.  126.  They 
are  held  perfectly  distinct  and  separate.  "  The  equitable  estate  is  to  be 
enjoyed  in  the  same  conditions,  entitled  to  the  same  benefits  of  ownership, 
disposable,  devisable,  and  barrable,  exactly  as  if  it  was  an  estate  executed 
in  the  party :  and  the  person  entitled  to  it  may,  without  the  intervention  of 
the  trustees,  or  the  possibility  of  their  preventing  him  from  exercising  his 
ownership,"  [except  where  the  instrument  creating  the  trust  requires  their 
concurrence,)  "  act  as  if  no  trustees  existed,  and  the  court  will  give  validity 
to  such  acts."  3  Vez.  127.  1  Mad.  381.  Moreover,  as  we  have  else- 
where seen,  the  equitable  estate  is  now  subject  to  dower,  curtesy,  and  the 
debts  of  cestui  que  trust. 

On  the  other  hand,  the  power  of  the  trustee  over  the  legal  estate  vested 
in  him,  exists  only  for  the  benefit  of  the  cestui  que  triist.  No  act  or  negli- 
gence of  the  former  can, prejudice  or  narrow  the  title  of  the  latter.  3  Vez. 
127,  341.    2  Fonb.  170.     16  Vez.  jr.  26.     I  H.  &  M.  49.    His  deed,  it  is 


CHAP.  21.]  TRUSTS.  437 

true,  will  pass  the  legal  liilc.  G  Mun.  358,  367.  But  it  will  not  avail  against 
the  cestui  que  trust  in  equity,  except,  indeed,  in  the  single  case  of  an  aliena- 
tion to  a  purchaser  without  notice,  the  trustee  being  in  possession  :  an  event 
that  can  scarcely  ever  occur,  since  in  tracing  the  title  the  purchaser  would 
in  almost  every  conceivable  instance  be  led  to  a  discovery  of  the  trust. 
1  Mad.  363.  2  Fonb.  170.  See  also  4  John.  C.  C.  138.  Should  such  a 
case  occur,  the  remedy  of  the  cestui  que  trust  \vou\d  be  against  the  trustee, 
who  would  be  bound  to  make  good  the  trust.     2  Fonb.  170,  173. 

As  the  acts  of  the  trustee  cannot  bind  or  injure  the  cestui  que  trust,  it  fol- 
lows a  fortiori  that  the  trust-subject  is  not  liable  in  his  hands  for  his  own 
debts  or  charges;  nor  in  case  of  his  death  without  heirs  would  the  com- 
monwealth hold  by  escheat  disencumbered  of  the  trust:  a  subject  already 
sufficiently  adverted  to  elsewhere.     See  1  Mad.  363. 

Trusts  being  the  mere  creatures  of  equity,  it  is  obvious  that  it  has  juris- 
diction of  every  case  which  involves  that  peculiar  species  of  trust  and  con- 
fidence of  which  the  common  law  takes  no  notice,  which  are  sometimes 
known  under  the  name  of  second  uses,  and  which  owe  their  existence  to 
courts  of  chancery.  See  1  Leigh,  Ambler  vs.  Warwick.  4  Mun.  130. 
Coop,  xxvii.  1  Fonb.  Book  1,  ch.  1,  §  3,  note/.  A  bill  therefore  will  lie 
for  the  cestui  que  trust  against  the  trustee,  to  compel  an  account  or  perfor- 
mance of  the  trust ;  or  if  he  refuses  to  institute  suits  against  others  which 
are  required  by  the  situation  of  the  trust- subject,  the  cestui  qui  trust  may 
sue  both  him  and  them  in  equity.  So  the  trustee  may  at  any  time  apply  to 
a  court  of  equity  by  bill  (in  which  the  cestui  que  trust  must  be  a  party  de- 
fendant) praying  its  instructions  as  to  the  trust,  where  such  seem  necessa- 
ry ;  or  asking  its  authority  to  make  investments  of  funds  for  the  benefit  of 
those  interested.  Sec.  1  Wash.  246.  So  peculiar,  indeed,  is  the  power  of 
the  court  of  equity  in  relation  to  this  species  of  trust,  that  though  there  be 
no  other  ground  of  jurisdiction,  the  existence  of  a  trust  will  be  a  motive  for 
relief;  and  therefore,  in  the  case  of  a  trust,  relief  has  been  sometimes  given 
in  equity,  though  the  party  might  have  made  his  defence  at  law,  and  ne- 
glected to  do  so.     3  Mun.  130.     See  also  1  Mad.  354. 

Having  premised  thus  much,  I  proceed  in  the  first  place  to  inquire 
What  constitutes  a  trust  ?  And  here  we  are  to  observe  that  the  terms 
"  trust  and  confidence  "  are  not  here  to  be  understood  in  their  ordinary  or 
popular  sense ;  nor  do  they  embrace  a  variety  of  cases  daily  occurring  in 
the  courts,  where  one  man  is  entrusted  by  another  in  the  management  of 
his  concerns,  the  possession  of  his  property,  or  the  collection  or  disburse- 
ment of  his  funds.  Thus  an  attorney  is  trusted,  but  he  is  no  trustee  ;  agents 
and  partners  are  confided  in,  but  they  are  not  technically  trustees  :  bailees 
hold  the  property  of  the  owner  for  Lis  benefit,  but  they  are  no  trustees, 
according  to  the  sense  in  which  the  word  is  used  in  equity.  In  favor  of 
all  these  the  statute  of  limitations  is  a  good  plea,  though,  as  we  shall 
see,  it  is  no  good  plea  in  bar  of  a  continuing  trust,  properly  so  called. 
Trusts  are,  in  short,  what  uses  formerly  were,  and  when  applied  to  real  es- 
tate they  mean  a  confidence  reposed  in  the  trustee,  to  whom  the  legal  es- 
tate in  the  land  is  conveyed,  that  he  will  permit  another  person  called  the 
cestui  que  trust,  to  take  the  profits  and  enjoy  the  estate  according  to  the 
terms  of  the  declaration  of  trust.  The  same  definition  is  equally  applica- 
ble (mutatis  mutandis)  to  trusts  of  personal  estate  ;  for  the  invention  of 
trusts  was  found  so  convenient  for  family  settlements,  and  the  arrangement 
of  estates,  to  effect  the  just  and  legitimate  purposes  of  the  donor,  that  they 
have  been  long  since  as  customary  in  relation  to  personal  property  as  to 
real ;  so  that  bank  stock,  stock  in  the  funds,  slaves,  money,  or  other  chat- 
tels, may  as  well  be  settled  and  conveyed  in  trust  as  real  estate. 


438  TRUSTS.  [book  3. 

Trusts,  as  thus  explained,  are  either  express  or  implied.  Express  trusts 
are  such  as  are  created  by  the  express  terms  or  provisions  of  the  deed, 
will,  or  other  instrument  creating  them.  As  if  lands  are  devised  to  A  in 
(irust  for  the  benefit  of  B.  Here  A  is  indeed  the  holder  of  the  legal  title, 
but  the  entire  equitable  or  beneficial  interest  is  in  B.  He  alone  has  a  right 
to  the  profits  of  the  estate,  and  he  may  dispose  of  it  at  his  pleasure,  if  there 
he  no  control  upon  his  po\rer  of  disposition  declared  by  the  trust  itself. 
Implied  trusts  are  such  as  arise  not  from  the  express  provisions  of  the  deed 
or  instrument,  but  merely  from  the  construction  of  the  law.  Such  are  re- 
sulting trusts.  As  where  A  buys  an  estate  with  B's  money,  and  at  his  re- 
quest, and  takes  the  title  in  his  own  name.  Here  a  trust  is  implied  on  be- 
half of  B:  or  where  A  conveys  to  B  in  fee  in  trust  for  A^s  heirs,  without 
declaring  the  trust  of  the  estate  during  his  own  life,  here  a  trust  results  for 
his  life  to  himself:  for  the  life  interest  being  undisposed  of,  and  no  benefit 
being  intended  to  B,  the  law  implies  the  trust  to  result  to  A.  Other  instan- 
ces of  implied  trusts  will  hereafter  be  given.  For  the  present  these  will 
suffice,  and  we  shall  now  proceed  to  consider  express  and  implied  trusts  in 
succession. 

1.  Express  trusts.*  Altho-ugh  these  are  created  by  the  express  provi- 
sions of  the  deed  or  instrument  from  whence  they  arise,  there  are  no  pecu- 
liar words  necessary  to  constitute  them.  We  are  told  by  a  great  authority 
that  "to  constitute  a  valid  trust,  three  circumstances  must  concur.  1. 
Sufficient  words  to  create  it.  2.  A  definite  subject.  3.  A  certain  and  as- 
certained object."  9Vez.  323.  To  these  it  may  be  added,  4.  That  there 
must  be  a  trustee  t  distinct  from  the  cestui  que  trust,  so  that  the  legal  title 
may  be  in  one  person,  while  the  equitable  interest  is  in  another.  See  1 
Vez.  jr.  271.  In  considering  these  requisites  we  shall  unavoidably  be  com- 
pelled to  view  them  somewhat  in  connexion  with  each  other. 

There  must,  it  is  said,  be  sufficient  words  to  create  a  trust.  And  here  it 
seems  to  me  that  although  no  particular  forms  of  expression  are  essential, 
yet  it  is  necessary  that  the  words  should  imply  the  conveyance  of  an  estate 
or  interest  to  the  trustee,  and  not  a  mere  authority.  The  interest,  indeed, 
vested  in  the  trustee,  is  not  a  beneficial,  but  a  mere  legal  interest  or  title ; 
yet  without  such  interest  the  instrument  creates  no  trust.  See  1  Vez.  jr. 
271.  For  without  such  interest  there  is  nothing  to  raise  a  trust.  And  it 
is  of  the  last  importance  to  distinguish  between  a  trust  and  a  mere  authori- 
ty;  for,  as  we  have  already  seen,  the  statute  of  limitations  is  no  protection 
to  the  trustee,  though  it  is  a  shield  to  the  mere  agent;  and,  moreover,  the 
failure  to  execute  the  requirements  of  the  instrument  is  attended  with  very 
different  consequences  in  the  two  cases.  For  naked  powers  are  construed 
strictly ;  but  powers  coupled  with  an  interest  are  construed  liberally.  2 
Vez.  79.  Where,  therefore,  there  is  a  mere  power  of  appointment  accom- 
panied by  a  discretion,  and  such  power  is  not  executed,  equity  cannot  in- 
terfere ;  but  where  the  power  is  coupled  with  a  trust,  to  the  execution  of 
which  the  party  looks  with  confidence,  the  failure  or  negligence  of  the 
trustee  will  not  be  permitted,  in  equity,  to  disappoint  those  objects  :  for  it 
is  a  principle  that  a  trust  shall  never  fail  for  want  of  a  trustee  to  execute 
the  trust,  but  the  court  will  consider  itself  trustee,  and  appoint  a  person  to 

*  Wbea  an  eetate  is  devised  to  trustees  for  particular  purposes,  the  legal  estate  is  vested  in  them  a« 
long  as  tlie  purposes  of  tlie  trust  require  and  no  longer.  VVhen  they  are  satisfied,  it  will  vest  in  the 
persons  beneficially  entitled.  1  iiarn.  61.  Aid.  :i36.  The  court  thus  seems  to  consider  the  use  execu-. 
ted  as  soon  a.-"  the  purposes  of  the  trust  are  fulfilled.  Indeed,  the  trust  having  been  the  mere  crea- 
ture of  the  courts,  and  an  evasion  of  the  statute,  for  the  purpose  of  effectuating  the  objects  of  the 
parties,  it  is  natural  that,  when  those  objects  have  been  completely  fulfilled,  the  courts  should  con- 
eider  the  trust  as  no  longer  subsisting. 

t  Where  a  trust  ia  clearly  intended,  but  no  trustee  naTTxtf,  courts  of  equity  consider  the  heireiv 
trustee  in  relation  to  the  re:il  estate,  and  the  personal  representative  as  to  the  personal  estate,  aud 
will  compel  the  executioa  of  the  uust  accordingly.    1  firo.  C.  C.  12.    1  Mad.  365. 


eiiAP.  21.]  TRUSTS.  439 

execute  it:  5  Vez.  507:  and  it  is  equally  well-established  that  no  act  or 
omission  of  the  trustee  shall  ever  affect  or  impair  the  interest  of  the  cestui 
que  trust.  The  distinction,  indeed,  between  a  trust  and  a  power,  is  admit- 
ted to  be  very  nice.  5  Vez.  505.  Yet  where  there  appears  to^be  only  a 
power  of  appointment,  and  not  a  trust,  and  the  power  is  not  executed,  the 
consequence  always  is,  thr.t  equity  cannot  interfere  ;  but  otherwise  if  there 
be  a  trust  coupled  with  that  power,  or  there  is  an  imperative  duty,  and  not  a 
mere  power.  5  Vez.  501,  506,  8  Vez. 570.  Thus  in  the  case  of  Bullrs. 
Vardy,  1  Vez.  270,  the  testator  gave  his  wife  no  interest  in  the  general  pro- 
duce of  his  estate,  but  "  empowered  "  her  to  give  away  £1000  by  will,  £100 
to  A  and  B  each,  and  the  rest  as  she  pleased.  She  died  without  making  any 
disposition.  A  sued  for  the  £100,  but  her  bill  was  dismissed,  as  this  was 
a  power  only,  and  not  a  trust ;  for  no  interest  being  given  to  the  wife,  she 
could  not  be  a  trustee — and  without  a  trustee  there  could  not  be  a  trust,  and 
so  there  was  nothing  to  raise  a  trust.  So  in  the  case  of  the  Duke  of  Marl- 
borough vs.  Lord  Godolphin,  (2  Vez.  61,)  the  testator  devised  to  his  wife 
£30,000,  and  by  a  codicil  declared  it  to  be  to  her  for  life,  and  afterwards 
to  such  of  his  children  as  he  should  appoint.  Lord  Hardwicke  held  this 
to  be  a  mere  power  and  not  a  trust ;  for  here,  though  the  wife  had  a  suffi- 
cient interest  out  of  which  to  raise  a  trust,  yet  he  deemed  the  bequest  not 
to  be  to  the  children  absolutely,  but  considered  them  as  dependent,  not  on 
his  bounty  only,  but  on  her's  also.  See  5  Vez.  jr.  506.  But  in  the  case  of 
Brown  vs.  Higgs,  where  the  testator  gave  his  estate  to  J.  B.  to  receive  the 
rents  and  to  pay  £100  to  R.  B.,  to  take  £100  to  his  own  use,  and  "em- 
ploy the  remainder  for  the  use  of  such  children  of  S.  B.  as  the  said  J.  B. 
shall  think  most  deserving,  this  was  held  a  trust ;  the  master  of  the  rolls  re- 
lying both  on  the  whole  interest  having  been  given,  (5  Vez.  506,)  and  on 
the  objects  of  the  trust  being  definitely  ascertained.  Id.  507.  In  this  case 
the  master  of  the  rolls  seems  not  to  have  been  satisfied  with  Lord  Hard- 
wicke's  opinion  in  the  case  of  the  Duke  of  Marlborough  vs.  Godolphin, 
seeming  to  consider  the  will  in  that  case  also  as  constituting  a  trust,  and 
not  a  mere  naked  power.  The  decision  in  Brown  vs.  Hisrgs  was  affirmed. 
See  4  Vez.  70S.     5  Vez.  495.     8  Vez.  561.     16  Vez.  26.     ]  Atk.  469. 

From  the  cases  just  cited  it  appears  difficult,  and  perhaps  indeed  it  is  im- 
possible, accurately  to  define  what  constitutes  a  trust  and  what  a  naked 
power.  See  8  Vez.  561.  We  must  be  therefore  content  with  having  sta- 
ted what  are  the  essentials  to  constitute  a  trust,  leaving  each  case  to  be  ap- 
plied to  the  standard  thus  established,  in  order  to  the  discovery  of  its  true 
character.  It  is  not,  however,  unimportant  to  remark,  that  where  the  ob- 
jects of  bounty  are  distinctly  ascertained,  and  a  bounty  is  definitely  declared 
to  them,  depending  on  the  discretion  of  the  appointee  only  as  to  the  por- 
tions of  each  ;  but  a  fixed  and  determinate  intention  appears,  that  the  ap- 
pointment shall  be  made  absolutely  to  some  one  or  more,  with  only  a  pow- 
er to  give  a  preference,  a  court  of  equity  would  doubtless  lean  to  that  con- 
struction which  would  effectuate  the  intent  by  considering  the  provision  a 
trust,  and  not  a  naked  power.  But  whenever  the  character  of  the  instru- 
ment is  fixed,  the  consequence  is  invariable;  if  it  be  a  naked  power  with  a 
discretion  to  execute  it  or  not,  and  there  is  no  appointment,  the  power  fails 
and  equity  cannot  relieve;  if  it  be  a  trust,  although  there  be  no  appoint- 
ment, and  the  trustee  dies,  the  trust  shall  not  fail,  if  the  object  of  the  bounty 
is  fixed  and  determinate.  5  Vez.  504.  We  must  not  omit  to  observe, 
however,  that  though  equity  will  not  supply  the  non-execution  of  a  naked 
power,  it  will  often  aid  its  defective  execution  :  of  which  hereafter. 

The  reason  of  this  distinction  between  trusts  and  naked  powers  in  refei^ 
ence  to  appointments,  though  somewhat  technical,  is  not  entirely  without 
foundation  in  principles  of  justice,  and  good  sense,  and  a  respect  for  the 


440  TRUSTS.  [  BOOK  3. 

intention  of  the  festator  or  giver.  In  the  case  of  a  naked  power,  where 
the  testator  permits  his  estate  to  descend  to  his  heir  or  personal  representa- 
tive, and  vests  only  an  authority  in  another  person  to  appoint,  the  authority 
is  obviously  a  matter  of  mere  personal  covfidence  submitted  to  be  exercised 
or  not,  at  the  discretion  of  the  person  empowered.  Being  <i.  personal  con- 
fidence, it  cannot,  in  the  nature  of  the  thing,  .^^urvive  to  any  other,  or  be 
transmitted  to  representatives,  and  indeed  the  failure  to  appoint  seems  but 
an  exertion  of  that  discretion  with  which  the  party  was  invested.  Had  the 
testator  absolutely  intended  a  bounty  to  a  particular  person,  he  might  as  well 
have  given  it  at  once.  Not  having  done  so,  he  intended  to  leave  a  dis- 
cretion to  give  or  not,  at  pleasure,  and  if  the  party  authorized  declines  or 
fails  to  give,  he  but  exercises  the  discretion  vested  in  him.  Moreover  in 
the  case  of  a  mere  power,  it  not  only  cannot  survive  or  be  transmitted  of 
itself,  but  there  is  nothing  to  which  it  can  attach  that  does  survive  or  is 
transmitted.  But  in  the  case  of  a  trust,  the  lecral  estate  or  interest  being 
transferred  to  a  trustee,  it  passes,  or  is  transmitted  of  necessity,  to  his  re- 
presentatives. His  conscience  during  his  life,  and  theirs  after  his  death, 
are  affected  by  the  trust,  and  as  no  beneficial  interest  is  intended  them,  they 
are  hound  in  conscience  to  execute  the  trust,  if  there  are  specific  and  de- 
terminate objects  of  bounty.  If  they  do  not,  they  would  enjoy  the  estate 
contrary  to  the  testator's  will;  for  the  heir  at  law  could  not  compel  them 
to  convey  to  him,  since  the  beneficial  interest,  is  determinately  fixed  in 
others.  Where,  indeed,  there  are  no  specific  objects  of  bounty,  and  a  dis- 
cretion is  vested  in  the  party  to  whom  the  interest  is  conveyed,  to  appoint 
or  not,  at  his  discretion,  and  not  merely  to  give  a  preference,  there,  if  no 
appointment  be  made,  the  heir  or  personal  representative  of  the  testator 
will  become  entitled  ;  as  the  trust  in  such  case  results  to  them  ;  for  the  par- 
ty takes  as  trustee,  if  not  for  persons  designated  by  the  will,  for  those,  at 
least,  who  take  under  the  disposition  of  the  law.  10  Vez.  537.  More- 
over, in  the  case  of  a  trust,  where  there  are  determinate  objects  of  bounty, 
with  a  mere  power  to  give  a  preference  to  one  or  more  of  such  objects 
over  others,  (as  where  the  testator  directs  absolutely  that  the  estate  shall  go 
to  some  of  his  children,  with  a  power  in  the  trustee  to  select  such  child,) 
it  is  obvious  that  although  the  power  of  selection  is  a  personal  confidence, 
yet  there  is  no  discretion  left  in  the  trustee  justifying  his  failure  or  refusal 
to  appoint  to  any.  The  duty  to  appoint  to  some  is  imperative:  and  if  he 
omits  to  fulfil  the  trust  reposed,  a  court  of  equity  will  compel  its  execution. 
If,  indec;!,  he  dies,  so  that  the  selection  can  no  longer  be  made  by  him  m 
whom  alone  the  personal  confidence  was  reposed,  equity — in  consonance 
with  its  principles  in  relation  to  naked  powers — considers  the  power  of  se- 
lection as  gone — as  incapable  of  being  exercised  by  any  other,  and  as  be- 
yond its  own  powers.  And  the  power  of  selection  or  preference  being 
gone,  but  the  trust  remaining,  the  court  directs  the  execution  of  it  in  be- 
half of  all  the  specified  objects  of  bounty,  without  discrimination.  See  1 
Vern.  (57.     5  Vez.  362.     Gilmer,  27,  33. 

It  may  be  asked,  however,  why  is  the  testator's  intention  permitted  to  he 
defeated  in  the  case  of  a  mere  naked  power,  when  the  object  of  the  testa- 
tor's bounty  is  definitely  fixed  and  ascertained  ?  It  may  be  answered, 
that  if  the  object  is  thus  determinate,  it  is  not  a  mere  power ;  but  the  devise 
may  operate  as  an  immediate  devise  to  the  ascertained  object,  whether 
there  be  or  be  not  an  appointment.  Thus  a  devise  to  A  for  life,  with  di- 
rections that  at  his  death  he  shall  dispose  of  it  to  B,  operates  as  an  imme- 
diate devise  to  B  of  the  remainder.  And  whether  A  does  any  act  or  not, 
it  shall  go  to  B.  I  Vez.  jr.  271.  But  where  the  object  is  not  determinate, 
and  there  is  a  discretion  to  appoint  or  not  to  appoint,  there  the  power  fails 
for  want  of  appointment.     And  even  where  the  devise  cannot  so  operate 


CHAP.  21.]  TRtrSTS.  "^41 

as  an  immediate  devise,  yet  if  Ihe  object  is  determinate,  and  the  requisition 
to  appoint  imperative,  a  court  of  equity  considers  it  as  partaking  of  the 
qualities  of  a  trust — as  a  duty,  and  not  as  a  mere  authority  ;  and  if  the  per- 
son authorized  does  not  execute  it,  it  will  discharge  the  duty  in  his  stead 
"  to  a  certain  extent."  So  that  there  is  a  species  of  power  between  amcre 
power  and  a  trust.     8  Vez.  569. 

In  pursuing  the  inquiry  as  to  what  constitutes  a  trust,  the  student  may 
here  be  referred  to  what  is  said  in  Book  2,  as  to  recommendatory  or  preca- 
tory bequests.  See  also  10  Vez.  535.  We  shall  also  have  a  further  illus- 
tration of  this  matter  as  we  proceed  to  consider  the  several  species  of  ex- 
press trusts.  Of  some  of  these  wc  have  already  treated  so  much  at  large, 
that  it  will  be  necessary  to  add  but  little  respecting  them  in  this  cursory 
view  of  the  principles  of  equity.  Such,  for  instance,  are  marriage  settle- 
ments, which  are  in  effect  conveyances  to  trustees  for  the  purposes  agreed 
upon  by  the  parties  to  the  marriage  contract,  whether  for  protection  of  the 
estate  of  the/e?/ie  from  the  debts  or  control  of  the  husband,  or  for  securing 
to  her  a  competent  livelihood  in  the  event  of  his  death,  out  of  his  estate,; 
which  we  have  already  had  occasion  to  treat  somewhat  particularly  in  the 
first  book  of  the  commentaries. 

The  object  of  most  marriage  settlements  is  to  make  a  provision  for  the 
children  of  the  marriage,  and  hence  where  articles  are  entered  into  before 
marriage,  the  children  who  may  be  afterwards  born  are  considered  as  pur- 
chasers whose  rights  are  not  to  be  divested  by  the  subsequent  acts  of  the 
married  parties,  whether  done  before  or  after  their  birth.  The  articles  are 
considered,  however,  only  as  the  heads  or  minutes  of  an  agreement  enter- 
ed into  between  the  parties  upon  a  valuable  consideration,  (that  of  mar- 
riage,) and  if  they  are  not  carried  into  executiQii  before  marriage  by  the 
execution  of  a  settlement,  they  will  be  regarded  in  equity  as  merely  execu- 
tory, and  subject  to  be  moulded  according  to  the  intention  of  the  parties 
when  they  were  entered  into.  If,  indeed,  a  settlement  be  made  before  the 
marriage  in  execution  of  the  articles,  but  varying  therefrom,  or  if  it  be  dif- 
ferent from  what  a  court  would  have  directed  to  be  made  upon  the  articles, 
they  yield  to  the  settlement  unless  it  appears  that  there  was  some  mistake, 
or  that  the  parties  designed  to  conform  to  the  articles,  though  the  settle- 
ment as  drafted  by  the  scrivener  failed  to  do  so.  For,  in  such  cases,  the 
settlement  being  executed  when  the  parties  (being  yet  single)  had  a  right 
to  change  their  minds,  such  change  will  be  presumed  unless  the  contrary 
clearly  appears.  But  a  marriage  settlement  executed  after  marriage,  in 
pursuance  of  marriage  articles,  is  always  controlled  by  the  articles,  fox  this 
obvious  reason,  that  after  marriage  the  terms  of  the  contract  cannot  be  al- 
tered. 1  Fonb.  190.  2  Rand.  3i>G.  3  H.  &  M.  421.  See  2  Call,  5. 
Fearne,  90  to  107.  And  where  marriage  articles  have  not  been  carried  into 
effect  by  settlement  before  marriage,  the  court,  considering  them  as  mere 
heads  or  minutes  of  agreement,  will  mould  them,  as  we  have  just  said,  to 
effectuate  the  object  of  the  settlement.  Thus,  where  in  England  A  by  mar- 
riage articles  agreed  to  settle  lands  on  himself  for  life,  remainder  to  the 
heirs  male  of  his  body  by  the  intended  wife,  a  strict  settlement  was  decreed  ; 
that  is  to  say,  the  remainder  was  ordered  to  be  limited  by  the  settlement  to 
the  first  and  every  other  son  of  the  marriage,  so  that  the  male  children  of 
the  marriage  would  take  by  purchase.  For  if  the  settlement  had  followed 
the  words  of  the  articles,  then  the  remainder  to  the  heirs  male  would  have  en- 
larged the  estate  of  the  father  to  an  estate  tail  male,  which  he  might  have 
barred  the  next  day,  and  thus  have  defeated  the  very  object  of  the  articles, 
which  was  to  secure  the  property  to  the  children.  See  3  H.  &  M.  407, 
and  the  cases  there  cited.  See  also  1  Mad.  50,  &c. 
VOL.  2—56 


442  TRUSTS.  [  BOOK  3. ' 

In  the  case  of  Tabb  f5;  Archer,  (3  H.  &-  M.  399,)  the  marriage  articles 
havin'T  made  provision  for  "the  issue"  of  the  wife,  a  strict  settlement  was 
ordered  to  be  made  by  conveyance  "  to  trustees,  for  tlie  use  of  the  children 
of  the  wife  living  at  her  death,  and  the  descendants  of  such  as  should  die 
before  her,  as  parceners  in  parcenary."  This  seems  inconsistent  with  the 
principle  of  the  decision  which  considers  the  issue  as  taking  hy  purchase, 
whereas  parceners  can  only  take  by  descent.  It  is  also  inconsistent  with 
the  British  decisions,  which  in  such  cases  consider  the  issue  as  tenants  in 
common.  1  Sch.  &.  Lef.  84.  The  law  of  descents  was  necessarily  refer- 
red to,  indeed,  to  ascertain  who  were  to  take  under  the  description  of  is- 
sue, and  that  they  were  to  take  per  stirpes  and  not  per  capita,  but  they 
could  not  take  as  parceners,  because  they  took  as  purchasers. 

Among  the  various  species  of  express  trust,  it  behoves  us  to  advert  par- 
ticularly to  trusts  for  payment  of  debts.  These  are  sometimes  by  way  of 
mortgage,  of  which  we  have  spoken  somewhat  at  large  already.  Some- 
times they  are  by  way  of  conveyance  to  a  trustee  with  power  to  sell  and 
pay  debts  set  forth  in  the  deed,  and  sometimes  such  conveyances  in  trust 
are  accompanied  by  a  composition  with  creditors,  whereby,  on  receiving 
security  for  part  of  their  debts,  they  agree  to  release  the  residue.  These 
are  always  supported  in  equity,  unless  they  are  founded  in  fraud  or  misre- 
presention.  When  that  is  the  case,  they  sometimes  come  under  the  head, 
of  underhand  agreements,  which  have  been  already  treated  of.  Sometimes- 
they  are  void  from  their  obvious  design  to  cover  the  grantor's  property,  or 
leave  the  ownership  or  control  of  it  in  him.  Such  is  a  trust  for  payment  of 
such  debts  as  the  debtor  might  appoint,  with  ;)OM,'er  of  revocation  ;  this  is  a 
void  trust.  2  John.  565.  On  this  ground,  too,  a  trust  for  payment  of 
debts  with  power  reserved  to  mortgage  the  property  conveyed,  is  fraudulent 
and  void,  for  the  grantor  is  thus  enabled  to  defeat  the  whole  provision.  2 
<Vern.  519.  2  John.  580.  But  a  trust  reserving  part  of  the  interest  to  the 
debtor  does  not  destroy  the  provision  in  respect  to  the  residue,  though  if 
the  part  unreserved  prove  deficient,  equity  might  in  a  jiroper  case  subject 
the  reserved  part  also.  2  John.  580,  citing  5  T.  R.  420.  With  respect, 
too,  to  deeds  of  composition,  it  has  been  very  properly  decided  that  a  trust 
of  part  of  the  debtor's  property  on  condition  that  the  creditors  should  com- 
pound and  accept  a  part  of  their  debts,  and  give  a  release  for  the  residue, 
is  oppressive  upon  the  creditors,  and  fraudulent  and  pernicious  in  its  ten- 
dency; though  such  conveyances  of  the  whole  of  his  property  by  a  debtor, 
on  such  terms  is  considered'^  as  we  have  just  said,. as  admissible  and  valid'.- 
5  John  C.  R.  332. 

If  all  the  creditors  do  not  come  in  and  accept  the  benefit  of  a  trust  for 
payment  of  debts,  those  who  do  come  in  may  exhibit  their  bill  against  those 
who  stand  out  and  compel  them  either  to  come  in  or  renounce  the  benefit 
of  the  trust.  We  have  already  seen  that  a  trust  for  the  benefit  of  a  third 
person  may  be  accepted  at  a  subsequent  period,  and  that  the  acceptance 
then  relates  back  to  the  date  of  the  deed.  Antr,  Book  2.  It  is  said,  how- 
ever, to  be  otherwise  where  the  deed  is  made  directly  to  the  creditors,  for 
then  it  is  not  a  binding  deed  till  acceptance.  4  John.  522.  See  also  Id. 
238.  But  in  the  case  of  the  trust  the  legal  estate  passes  at  the  time  of  ex- 
ecuting the  deed,  and  vests  in  the  trustees,  who  will  be  compelled  inequity 
to  execute  it.  Id.  And  this  I  presume  whenever  the  assent  of  the  cestui 
que  trust  is  given.  That  assent,  however,  may,  I  apprehend,  be  "hastened 
by  request :"  in  other  words,  although  there  is  no  fixed  time  in  which  it  is  to 
be  given,  yet  any  party  interested  may  when  he  pleases  demand  of  the 
cestui  que  trust  eitUcr  to  assent  to  or  renounce  it. 

As  to  the  right  of  an  insolvent  debtor  to  tnake  an  assignment  for  the  ben- 
efit of  his  creditors  before  the  property  is  boundby  any  lien,  it  docs  not  ad- 


CHAP.  21.]  TRUSTS.  443 

mit  of  question,  provided  it  be  bona  fide ;  see  4  Jcihn.  529  ;  and  we  have 
seen  that  he  may  even  prefer  one  creditor  to  another,  provided  he  acts  bona 
fide.  Ante,  Book  2.  This  indeed  is  not  permitted  in  the  case  of  a  bank- 
rupt in  England,  since  such  preference  is  in  direct  hostility  with  the  very 
principle  of  the  bankrupt  system,  which  has  in  view  a  fair  distribution  a- 
mong  all  the  creditors,  j)ro  rata,  or  according  to  the  magnitude  of  their 
debts.  ]  Mad.  430.  But  independent  of  the  statutes  of  bankruptcy,  the 
right  to  give  a  preference  seems  clearly  to  have  been  recognized  by  the  law, 
though  its  policy  herein  has  been  questioned  by  high  authority.  See  2  John. 
C.  R.  577.  See  also  2  John.  283.  3  John.  435,  446.  4  John.  682.  15 
John.  Rep.  571. 

In  all  cases  of  trusts,  where  the  interest  is  obtained  through  the  fraud  of 
a  third  person,  though  the  person  benefitted  had  no  knowledge  of  it,  yet  we 
have  seen  that  he  takes  tainted  and  infected  with  the  fraud  of  the  person 
through  whom  he  claims.  "  Though  the  hand  that  receives  the  gift  be  ever 
so  chaste,  yet  if  it  comes  through  a  polluted  channel  the  transaction  is  tain- 
ted and  infected  by  it,  and  rendered  void."  This  principle  is  not  more  true 
in  reference  to  other  trusts  than  to  trusts  for  securing  debts  :  and,  therefore, 
if  there  is  fraud  on  the  part  of  the  trustee,  the  cestui  que  trust,  though  ig- 
norant of  it,  will  lose  the  benefit  of  the  lien.  See  Bank  vs.  Marbury, 
Wheaton. 

It  is  also  a  general,  though  not  an  universal  rule,  that  a  deed  cannot  even 
in  equity  be  good  in  part  and  void  in  part,  and  that  if  void  because  fraudu- 
lent as  to  any  part  of  it,  it  is  void  in  the  whole.  There  is  no  question  that 
if  a  deed  be  fraudulent  in  fact,  jt  is  absolutely  void  in  toto,  and  it  is  not  per- 
mitted to  stand  as  a  security  for  whrvt  is  really  due,  or  for  any  purpose  of 
reimbursement  or  indemnity.  For  deeds  made  of  purpose  to  defraud  cre- 
ditors or  purchasers,  are  by  the  law  itself  declared  void ;  they  are  therefore 
void  at  law  as  well  as  in  equity,  and  it  is  not  in  tlie  nature  of  a  deed  to  be 
'Ut  law  good  as  to  part  and  void  as  to  the  residue  ;  and  being  fraudulent  in 
fact,  the  guilty  party  can  hope  nothing  from  the  pure  hands"  of  a  court  of 
conscience.  But  where  the  deed  is  only  constructively  fraudulent  it  is 
otherwise.  1  John.  C.  R.  482,  citing  4  John.  Rep.  536,  593.  In  a  case, 
•indeed,  where  no  statute  had  declared  the  deed  to  be  void,  it  was  held,  up- 
on the  principles  of  the  common  law,  that  if  the  transaction  was  of  sucih  a 
nature  that  the  good  consideration  could  be  separated  from  the  bad,  the 
court  should  do  so.  Per  Carr,  3  Rand.  12.  (In  this  case,  however,  it  must 
be  observed,  the  party  claiming  under  the  deed  was  not  the  plaintiff,  but 
the  defendant  in  equity.)  And  in  a  subsequent  case  it  was  decided  that  a 
mortgage  in  part  for  a  gaming  consideration,  and  in  part  for  money  bona 
fide  lent,  should  in  equity  stand  as  a  security  for  the  latter,  though  at  law 
a  bond  on  such  combined  consideration  would  be  void.  3  Rand.  220.  Iq 
this  case,  too,  the  creditor  was  defendant  in  equity,  and  the  plaintiff  who 
asked  equity  was  compelled  to  do  it  by  paying  the  bona  fide  debt.  But  if  A, 
for  the  purpose  of  defrauding  the  creditors  of  B,  takes  an  assignment  of 
his  property,  or  a  deed  of  trust  or  mortgage  to  secure  twice  as  much  as  is 
really  due,  the  security  is  void  at  law  and  in  equity  for  the  whole. 

It  seems  scarcely  necessary  to  say,  that  if  a  deed  of  trust  be  to  secure 
creditors,  some  of  whom  are  fraudulent,  or  usurious,  or  have  gambling  de- 
mands, while  others  are  legal  and  bona  fide,  the  deed  will  be  valid  as  to  the 
latter,  though  not  as  to  the  former.  This  would  seem  to  follow  of  course 
from  the  power  asserted  of  separating  the  good  consideration  from  the  bad, 
where  that  is  practicable,  even  where  both  considerations  respect  the  same 
person.  For  if  the  gambling  creditor  by  mortgage  may  hold  the  mortgage 
as  security  for  money  bona  fide  lent,  which  is  also  secured  by  the  same  in- 
strument, tainted  as  he  is  by  the  illegal  transaction,  it  would  seem  to  follow, 


444  TRUSTS.  .  [  BOOK  3. 

a  fortiori,  that  a  bona  fide  creditor  would  retain  his  lien  for  a  bona  fide  debt, 
thouo-h  the  security  might  be  considered  void  as  to  the  fraudulent  lien  of 
another  party.  Were  it  otherwise,  a  deed  of  trust  to  secure  one  hundred 
creditors  would  be  rendered  void  as  to  the  whole  by  any  viciousness  in  the 
consideration  as  to  the  debts  of  any  one :  a  consequence  that  would  be 
pregnant  with  mischiefs. 

It  has  been  decided  that  a  mortgage  (and  so  I  presume  of  a  deed  of 
trust)  given  to  indemnify  an  endorser  of  a  note  in  bank,  will  continue  as  a 
valid  and  subsisting  security  as  long  as  such  note  shall  be  run  or  kept  alive  in 
bank,  in  whole  or  in  part,  by  renewals.  4  John.  73,  74.  In  this  case,  too, 
it  is  observable  that  the  note  was  at  one  time  reduced  by  payments  below 
the  amount  for  which  the  mortgage  was  ultimately  held  good.  There  was, 
however,  enough  on  the  face  of  the  mortgage  to  shew  to  subsequent  incum- 
brancers for  what  the  mortgage  was  given,  and  refer  them  to  the  proper 
source  for  information  as  to  the  amount. 

It  is  said  that  where  there  is  a  trust  for  payment  of  debts,  it  extends  only 
to  debts  existing  at  the  time  of  its  execution.  1  Mad.  432.  This,  how- 
ever, depends  obviously  on  the  terms  of  the  instrument ;  yet  doubtless  in 
such  cases  the  debts  already  due  would  be  first  entitled  to  payment,  as 
otherwise  the  power  to  create  new  debts  binding  on  the  fund,  would  in  ef- 
fect amount  to  a  power  of  revocation.  Where,  however,  A  lends  B  $1000, 
and  gives  a  mortgage  or  deed  of  trust  therefor,  and  in  contemplation  of 
further  loans  provides  that  it  shall  stand  as  a  security  for  such  other  sums 
as  the  creditor  might  advance,  it  has  been  made  a  question  whether,  upon 
the  principle  of  our  recording  acts,  the  deed  would  be  valid  as  to  such 
future  loans ;  but  it  has  been  decided  that  an  assignment  for  future  as 
well  as  present  responsibilities,  or  advances,  if  honestly  made,  is  not,  for 
that  cause,  invalid.  2  John.  308.  3  Cranch,  73.  7  Cranch,  34.  As 
against  subsequent  mortgagees,  this  doctrine  is  not  so  objectionable,  be- 
cause they  have  by  the  deed  constructive  notice,  and  they  may  attain  the 
necessary  information  by  inquiry  ;  but  as  against  existing  creditors,  I  think 
it  may  well  admit  of  question,  since  it  operates  as  a  trust  for  the  debtor's 
benefit,  and  enables  him  to  defraud  his  creditors  by  taking  up  subsequent 
loans  to  the  value  of  the  whole  property.  With  all  deference,  too,  I  would 
suggest  that  even  as  to  subsequent  incumbrancers  and  purchasers,  the  de- 
cisions above  mentioned  are  in  conflict  with  the  act,  which  intended  that  the 
subsequent  incumbrancer  or  purchaser  should  by  reference  to  the  registry, 
without  looking  farther,  be  enabled  to  discover  the  extent  of  the  prior  in- 
cumbrances. I  think  this  is,  indeed,  a  fair  inference  from  chancellor  Kent's 
own  opinion.  2  John.  170.  Hence,  in  such  cases  it  would  be  most  pru- 
dent to  have  the  subsequent  advances  acknowledged  by  endorsement  on 
the  deed,  or  otherwise,  and  such  acknowledgement  recorded  ;  and  from 
the  date  of  such  acknowledgement  the  validity  of  the  charge  would  be  un- 
questionable. 

Express  trusts  are  sometimes  created  by  will,  either  for  payment  of  debts 
or  for  the  benefit  of  some  object  of  the  testator's  bounty.  Of  devises  for 
payment  of  debts,  and  of  recommendatory  or  precatory  bequests,  we  have 
spoken  elsewhere.  Ante,  Book  2.  With  respect  to  trusts  created  by  will, 
it  may  generally  be  reniarlced,  that  in  questions  of  this  kind,  as  on  all  others, 
the  great  end  is  to  effect  the  testator's  objects,  if  they  are  legitimate  and 
intelligible  :  so  that  if  no  trustee  be  ai)pointed,  and  real  estate  be  the  sub- 
ject of  the  provision,  the  heir  at  law  is  regarded  as  trustee  : — if  personal 
estate  be  the  subject,  the  executor  will  be  so  considered."  1  Bro.  C.  C.  12. 
1  Mad.  36-5.  So,  too,  under  a  will  a  married  woman  may  acquire  a  sepa- 
rate property  without  the  int«rvention  of  trustees,  and  if  the  legal  estate  in 
such  case  devolves  on  the  husband,  he  will  be  considered  trustee  for  his 


CHAP.  21.]  TRUSTS.  445 

wife.     1  Mad.  37G.     Nor  are  any  technical  words  necessary  to  constitute 
a  separate  trust  for  her  benefit. 

Implied  trusts  are  exceedingly  various,  and  it  would  be  inconsistent  with 
our  plan  to  do  more  than  offer  instances  of  them.  Such  are  resulting  trusts, 
which  are  themselves  of  several  descriptions.  As  if  I  convey  my  lands  to 
B  in  trust  for  my  heirs  after  my  death,  the  life-interest  being  undisposed  of 
results  to  me,  and  B  is  trustee  for  my  use  during  my  life.  8o  if  A  purcha- 
ses land  in  my  name,  at  my  request,  and  with  my  money,  but  takes  the 
deed  in  his  own  name,  here  is  a  resulting  trust,  and  he  holds  for  my  benefit. 
2  Mad.  97.  10  Vez.  360.  For  the  law  implies  a  trust  from  the  transac- 
tion :  but  the  payment  of  the  money  must  be  clearly  established  ;  '•Z  Mad. 
97 ;  or  an  actual  loan  of  it  for  the  purpose,  at  the  time  of  the  purchase  ; 
5  John.  1.  2  John.  409;  for  an  advance  of  money  by  me  to  A,  at  a  sub' 
sequent  period,  would  not  suffice.  It  might  be  the  foundation  of  a  new 
agreement,  if  reduced  to  writing  within  the  statute,  but  it  cannot  raise  a 
trust  by  relation.  2  John.  409.  See  5  John.  1.  2  Rand.  187.  And  such 
resulting  trust  may  be  proved  or  rebutted  by  parol,  even  in  England  and 
New  York,  where  all  declarations  of  trusts  are  required  by  statute  to  be  in 
writing,  for  resulting  trusts  are  held  not  to  be  within  the  statute.  Id.  If 
no  part  of  the  purchase  money  be  paid  by  me,  there  is  no  resulting  trust, 
and  parol  evidence  would  not  be  admitted  to  prove  that  the  purchase  was 
made  for  my  benefit;  4  E.  577,  in  note.  7  Cranch,  176  ;  but  if  part  be 
paid,  the  land  will  be  charged  pro  tanto.  The  Virginia  statute  does  not 
require  declarations  of  trusts  to  be  in  writing. 

The  foregoing  principles  apply  with  peculiar  force  to  the  case  of  trustees 
purchasing  estates  with  trust  money.  In  these  cases  the  estate  always 
enures  to  the  cestui  que  trust.     See  Sug.  454. 

To  this  head  of  resulting  trusts  may  be  referred  also  the  cases  of  pur- 
chases by  trustees,  of  outstanding  claims  against  the  trust  estate  :  and  in 
like  manner  the  cases  of  such  purchases  by  persons  between  whom  and 
others  there  is  such  a  privity  that  the  law  implies  every  act  done  by  one  for 
the  advantage  of  the  estate,  to  enure  to  the  benefit  of  all.  Thus  if  a  trus- 
tee, or  a  joint-tenant,  or  tenant  in  common,  or  parcener,  or  vendee,  or  rriort- 
gagee,  purchases  in  an  encumbrance,  or  extinguishes  a  claim  against  the 
estate,  the  cestui  que  trust,  co-tenant,  vendor,  &c.,  will  have  the  advantage 
of  the  purchase,  and  cannot  be  charged  more  than  the  actual  sum  paid  to 
effect  the  beneficial  object.  2  John.  33,  34.  4  John.  532.  2  Rand.  408. 
1  Br.  C.  C.  198.  18  Vez.  274.  1  Mun.  330.  2  P.  Wms.  511.  2  Vern. 
84.  3  Eq.  Ca.  741.  1  Bos.  &  Pul.  376.  We  shall  have  occasion  to  speak 
hereafter  of  the  trustee's  purchasing  the  trust  subject  at  a  sale  made  by  him- 
self under  the  authority  of  the  trust. 

Resulting  trusts  not  only  arise  where  another  purchases  in  his  own  name 
with  my  money,  but  where  I  purchase  in  the  name  of  another  with  my  own 
funds  :  there  that  other  will  be  a  trustee  for  me.  Yet  this  doctrine  applies 
most  usually  to  the  case  of  a  stranger;  for  if  I  purchase  and  take  the  deed 
in  the  name  of  my  wife,  my  child,  or  grandchild,  it  might  be  considered  an 
advancement,  and  not  a  trust.  2  Mad.  98.  Yet  this  always  depends  up- 
on intention  ;  and  the  inference  that  it  is  intended  as  an  advancement  may 
be  rebutted  by  parol  evidence,  though  it  does  not  give  way  to  slight  cir- 
cumstances.    2  John.  539.     See  15  Vez.  43. 

Where  two  persons  purchase  and  pay  in  equal  proportions,  this  in  Eng- 
land constitutes  a  joint-tenancy  to  which  is  incident  ihe  jus  accrescendi : 
but  where  it  appears  from  the  deed  itself  that  the  portions  of  money  paid 
by  each  are  not  equal,  they  are  tenants  in  common.  In  England,  in  cases 
of  purchases  by  partners  for  the  purposes  of  trade,  the  survivor  is  consider- 
ed in  equity  as  trustee  for  tlie  representatives  of  the  deceased ;  but  they 


446  TRUSTS.  [book  3. 

are  laid  un<ler  the  condition  of  paying  whatever  balance  is  dfie  to  the  firm 
from  their  ancestor,  for  as  they  ^sk  equity  they  must  do  it.  In  Virginia  the 
jus  accrescendi  being  abolished,  the  heirs  take  the  legal  title  in  the  land,  and 
are  not  subject  to  such  condition,  though  it  may  be  otherwise  if  the  pro- 
perty be  purchased  with  partnership  funds ;  2  Rand.  186  ;  for  then  the 
greater  part  of  the  fund  paid  having  belonged  to  the  creditor-partner,  he 
may,  on  principles,  have  a  lien  for  the  excess  on  the  land,  or  an  interest  in 
the  land  itself  proportioned  to  such  excess.     Id. 

Besides  these  resulting  trusts  there  are  various  other  implied  trusts  known 
to  the  law.  Thus  executors  and  administrators  are  trustees  for  payment 
of  debts  and  legacies  :  the  mortgagee  is  trustee  for  the  mortgagor,  he  hav- 
ing an  equity  of  redemption  ;  the  holder  of  the  legal  title  to  an  estate  to 
which  another  hath  a  good  equitable  right,  is  a  trustee  for  him  ;  the  pur- 
chaser of  a  trust  estate  with  notice  of  the  trust,  stands  in  the  shoes  of  the 
original  trustee,  upon  a  trust  implied  by  the  law  ;  and  the  vendee  of  real 
estate  (where  no  security  has  been  given  for  the  purchase  money)  is  a  trus- 
tee for  the  vendor  to  the  amount  of  what  is  unpaid. 

On  these  two  last  topics  it  becomes  us  to  expatiate  a  little. 

1.  The  purchaser  of  a  trust  estate  with  notice  of  the  trust,  stands  in  the 
shoes  of  the  original  trustee,  upon  a  trust  implied  by  the  principles  of  equity 
which  justly  looks  upon  such  a  purchase  as  a  fraud  upon  the  cestui  que 
trust,  and  counteracts  its  effects  by  considering  the  purchaser  as  substituted 
-to  all  the  obligations  of  the  original  trustee.  Such  purchasers  are  therefore 
:always  considered  trustees,  (l(i  Vez.  249.  1  Sch.  &  Lef.  262,)  and  if  the 
•rights  of  the  cestui  que  trust  are  asserted  in  due  season,  they  are  always 
rigorously  enforced.  On  the  otiher  hand,  however,  a  purchaser  without  no- 
itice  who  has  acquired  a  legal  title,  and  paid  ^his  money  without  notice  of 
the  trust,  is  protected  in  equity  leven  against  t?he  cestui  que  trust;  for  by  ob- 
itaining  the  legal  title  he  had  the  law  in  his  favor,  and  having  purchased  and 
ipaid  his  money  without  notice,  he  has  equal  equity  with  the  cestui  que  trust 
Jhimself.  Here  then  it  becomes  obviously  necessary  to  inquire,  1.  "What 
amounts  to  notice  of  the  trust.  2.  How  far  the  purchase  must  be  comple- 
fted 'before  notice  ;  so  that  the  purchaser  will  not  be  affected  with  the  trust* 
S.  How  far,  if  he  has  notice,  is  he  bound  to  see  the  application  of  the  pur- 
chase money  paid  by  hin>self." 

First.  What  amounts  to  notice.  I  have  already  said  that  this  doctrine 
rests  upon  the  ground  of  such  purchase  from  a  trustee  with  notice  of  the 
trust  being  a.  fraud ;  for  it  is  a  conspiring  to  cheat  a  third  person  out  of  his 
rights.  Hence  it  is  always  necessary,  in  order  to  fix  this  fraud,  that  the 
proof  of  notice  should  be  clear  and  satisfactory.  See  6  Mun.44.  But  no- 
tice of  the  facts  from  which  the  law  draws  the  tinference  of  fraud,  is  sufli- 
cient  to  charge  the  purchaser,  whether  he  was  conusant  of  a  fraudulent  de- 
sign in  the  trustee  or  not.  Castleman,  &c.  vs.  Wormley,  Fed.  Court. 
This  notice,  too,  may  be  sufficient  though  it  be  not  direct ;  for  whatever  is 
sufficient  to  put  the  purchaser  upon  an  inquiry  is  sufficient  notice  ;  that  is, 
where  a  man  hath  sufficient  information  to  lead  him  to  a  fact,  he  shall  be 
deemed  conusant  of  that  fact.  As  where  the  trust  is  recited  in  a  deed  .uai- 
der  which  he  claims.  Sug.  542.  Sed  vide,  2  John.  190.  Notice,  too,  is 
either  actual  or  constructive,  but  there  is  no  difference  between  them  in 
their  consequences.  2  Rand.  101.  Actual  notice  must  be  given  by  a 
person  interested  in  the  property,  and  in  the  course  of  a  treaty  for  a  pur- 
<ihase.  Vague  reports  from  persons  not  interested  will  not  affect  the  pur- 
chaser's conscience,  nor  will  he  be  bound  by  notice  in  a  previous  transac- 
tion which  he  may  have  forgotten.  See  Sug.  532,  and  the  cases  cited  ar- 
guendo 2  Mun.  135.  Yet  in  such  cases  prudent  counsel  will  never  advise 
a  purchase  without  further  inquiry.     Constructive  notice  is  no  more  than 


CHAP.  21.];  TRUSTS.  447 

evidence  of  notice  satisfactory  of  its  existence,  or  furnishing  such  violent 
presumption  that  the  court  will  not  allow  it  to  be  controverted.  Sug.  533. 
A  fact  thus  proved  is  taken  to  exist  for  all  purposes  as  if  it  were  proved  by 
direct  evidence.  2  Rand.  101.  Yet  what  amounts  to  constructive  notice, 
it  is  said,  is  difficult  to  be  defined.  Some  rules  are,  however,  laid  down, 
which  may  be  usefully  attended  to.  1.  Notice  to  the  purchaser's  counsel, 
attorney,  or  agent,  is  notice  to  him,  provided  it  be  in  the  same  transaction ; 
for  otherwise  he  may  have  forgotten  it.  And  in  like  manner  if  I  purchase 
an  estate  or  procure  an  encumbrance  in  the  name  or  for  the  benefit  of  a- 
HOther,  (though  I  am  not  his  agent  when  I  do  so,)  yet  if  he  afterwards  as- 
sents to  the  conveyance  he  is  affected  by  any  notice  I  may  have  had.  14 
Vez.  273.  Marbury  vs.  Bank,  Wheaton.  Nor  can  a  man  elude  the  effect 
of  notice  by  procuring  the  conveyance  to  be  made  to  a  third  person.  Sug. 
534. 

2.  Private  acts  of  assembly  are  not  of  themselves  notice  to  purchasers. 
Sugden,  535. 

3.  The  recording  of  a  deed  seems  to  have  been  considered  by  an  able 
writer  as  notice  to  all  subsequent  purchasers  of  the  legal  estate,  and  this 
althougb  the  recorded  deed  was  of  an  equitable  title  only.  He  admits,  in- 
deed, that  the  mere  recording  of  such  deed  does  not  affect  with  notice  a 
subsequent  purchaser  or  encumbrancer,  who  had  at  the  time  of  such  pur- 
chase the  legal  title.  Sug.  508,  510,  539.  Lord  Kedesdale,  however,  re- 
jects these  distinctions,  and  seems  to  consider  the  recording  as  not  amount- 
ing to  notice.  See  1  Sch.  &  Lef.  103,  &c.  157.  1  Sch.  &  Lef.  64.  In 
these  opinions  Chancellor  Kent  seems  to  concur.  It  may  not  be  improper^, 
therefore,  to  shew  explicitly  what  appears  to  be  the  state  of  our  law  on  this- 
subject.     See  ante,  428,  in  note^^ 

If  the  prior  deed  be  a  conveyance  of  the  legal  title,  and  be  duly  regis- 
tered or  recorded,  it  has  of  course  preference  over  all  subsequent  deeds,, 
whether  the  purchaser  had  notice  or  not. 

If  the  prior  deed  be  a  conveyance  of  the  equitable  title  only,  yet  if  it  be 
duly  recorded,  it  is  notice  to  all  subse([uent  purchasers  by  the  express  pro- 
visions of  our  statute.  1  R.  C.  ch.  99,  §  13.  This  act  did  not  pass,  how- 
ever, till  1819. 

If  the  prior  deed  be  not  duly  registered,  yet  if  the  subsequent  purchaser 
had  notice  of  its  existence,  whether  such  notice  be  actual  or  constructive, 
it  will  suffice  to  affect  the  conscience  of  the  buyer,  provided  the  fact  of 
knowledge  of  the  deed  be  satisfactorily  established. 

4.  What  is  sufficient  to  put  the  party  upon  an  inquiry  is  good  notice, 
and  therefore  in  all  cases  where  a  purchaser  cannot  make  out  a  title  but  by 
a  deed  which  leads  him  to  the  real  fact,  whether  by  description  of  the  par- 
ties, recital,  or  otherwise,  he  willjje  deemed  conusant  thereof;  for  it  was 
crassa  negligentia  that  he  did  not  seek  for  and  examine  such  deed  :  and  for 
the  same  reason,  if  a  purchaser  has  notice  of  a  deed,  he  is  bound  by  all  its 
contents,  except  in  those  cases  where  he  has  no  right  to  look  into  the  deed, 
and  the  party  holding  it  refuses  to  permit  him  ;  in  which  case,  however,  such 
party  may  lose  his  rights  by  the  refusal  and  concealment.  So  if  a  man 
purchases  under  limitations  in  a  deed  which  make  it  necessary  in  that  trans- 
action to  look  into  the  deed,  and  it  contains  recitals  of  judgments  and  en- 
cumbrances on  the  land,  he  is  bound  by  them,  for  he  must  be  presumed 
to  have  seen  the  whole,  and  to  have  taken  notice  of  every  thing  in  it  affect- 
ing his  purchase.  Sug.  544,  545.  So,  too,  where  in  the  title  papers  under 
which  he  claims  there  is  a  recital  of  the  existence  of  an  encumbrance,  he 
is  bound  to  take  notice  of  it.  Alleusworth  vs.  Murray,  per  Carr,  chancel- 
lor, Winchester  chancecy  court. 


448  TRUSTS.  [  BOOK  3. 

It  must,  however,  be  admitted,  that  the  rules  on  this  subject  of  notice 
are  by  no  means  well  defined  and  determinate,  for  notwithstanding  what  has 
been  said,  it  has  been  determined  that  circumstances  amounting  to  mere 
suspicion  of  fraud  will  not  be  deemed  notice  thereof  to  the  purchaser.  Sug. 
546.  Now  what  amounts  to  suspicion  only,  and  what  to  evidence  of  fraud, 
is  a  matter  so  obviously  of  opinion,  as  to  leave  us  without  any  distinct 
principle  for  our  guide  in  relation  to  this  matter. 

5.  Lis  pendens  is  said  to  be  of  itself  notice  to  a  purchaser,  unless  it  be 
collusive,  in  which  case  it  will  not  bind  him.  Sug.  535.  In  considering 
this  matter  in  its  connections  here,  we  shall  unavoidably  be  driven  to  some 
repetition  of  what  has  been  already  advanced  under  the  head  of  frauds. 

A  purchaser  2)ende7ite  lite  is  he  who  purchases  (during  the  pendency  of  a 
suit  between  parties  litigant)  the  property  which  is  the  subject  of  the  litiga- 
tion, or  is  designed  to  be  affected  thereby.  Such  purchaser  stands  in  the 
shoes  of  his  vendor,  and  is  bound  by  any  decree  or  judgment  that  is  render- 
ed in  the  cause.  Thus  if  A  brings  detinue  against  B,  and  pending  the  suit 
C  purchases,  the  judgment  against  B  is  conclusive  upon  the  rights  of  the 
parties,  and  C  never  can  contest  it.  So,  too,  in  equity,  if  during  the  pen- 
dency of  a  suit  for  a  title  to  a  tract  of  land,  the  defendant  sells  it  to  another, 
that  other  will  be  bound  by  the  decree  against  his  vendor,  and  he  will  nofe 
be  permitted  to  examine  into  the  justice  of  the  decree,  but  will  be  bound  by 
prior  proceedings;  nor  will  the  purchase  affect  the  plaintiffs  rights  in  any 
manner,  except  so  far  as  it  may  be  necessary  to  go  against  the  purchaser 
if  he  has  acquired  the  legal  title.  Sug.  537.  The  necessity  of  the  princi- 
ple which  thus  binds  the  pendente  lite  purchaser  is  obvious.  It  is  founded 
on  the  necessity  of  giving  effect  to  the  proceedings  of  courts.  Without  it 
the  administration  of  justice  might  in  all  cases  be  defeated  by  successive 
alienations  of  the  property  in  litigation,  where  the  recovery  of  the  specific 
property  is  the  object  of  the  suit.  The  necessity  indeed  is  so  obvious,  that 
there  was  no  occasion  to  resort  to  the  presumption  that  the  purchaser  had 
notice.  Whether  he  has  it  actually  or  not,  the  application  of  the  principle 
would  be  necessary,  or  justice  would  be  defeated.  Hence  we  see  that  the 
law  affects  him  with  notice  even  where  there  is  a  physical  impossibility  that 
he  should  have  had  it: — as  where  he  purchases  on  the  day  on  which  the 
writ  or  subpcena  issues,  though  he  be  a  thousand  miles  distant  from  the  of- 
fice.    See  2  Rand.  102. 

What,  then,  amounts  to  a  lis  pendens  1  At  common  law  the  issuing  of 
the  writ  is  considered  as  the  commencement  of  the  lis  pendens,  and  a  pur- 
chaser on  or  after  that  day  holds  the  property  subject  to  the  execution  upon 
the  judgment  in  that  suit,  as  the  defendant  would  have  held  it  had  no  alien- 
ation been  made.  2  Rand.  102.  In  equity  the  rule  is  somewhat  more  re- 
laxed. No  lis  pendens  exists  until  the  service  of  the  subpcena  and  bill  filed: 
but  as  soon  as  the  bill  is  filed,  the  effect  of  the  lis  pendens  relates  back  to 
the  service  of  the  subpcena,  although  the  bill  may  not  have  been  filed  till 
long  after ;  so  that  he  who  purchases  after  the  service  of  the  subpcena  and 
before  the  bill  filed,  will,  after  the  filing  of  the  bill,  he  deemed  a  lite  pen- 
dente purchaser,  and  as  such  bound  by  the  proceedings  in  the  suit,  though 
the  subpoena  gives  him  no  information  on  the  subject.  2  Rand.  102.  Sug- 
den,  536. 

The  effect  of  the  lis  pendens,  as  above  explained,  may  obviously  be  of- 
ten harsh  in  its  operation  upon  bona  fide  purchasers,  and  it  becomes  there- 
fore important  to  ascertain  how  far  the  operation  of  the  principle  extends. 
It  may  be  considered,  I  presume,  as  embracing  every  case  where  the  right 
owner  of  a  real  estate  or  of  personal  property  is  suing  for  its  recovery.  In 
such  cases  if  the  defendant  aliens  pending  the  suit,  the  judgment  will  over- 
reach the  alienation.     And  so  in  equity  if  any  man  purchase  from  the  de- 


CHAP.  21.]  TRUSTS.  44^ 

fendant  pendente  lite  and  while  the  suit  is  in  full  prosecution,  the  decree 
rendered  in  that  cause  will  bind  him.  The  litigating  parties  are  exempted 
from  the  necessity  of  taking  notice  of  a  title  so  acquired.  As  to  them  it  is 
as  if  no  such  title  existed,  otherwise  suits  would  be  interminable,  or  it  would 
be  in  the  pleasure  of  one  party  to  put  an  end  to  the  suit  against  himself 
when  he  pleased,  by  transferring  the  subject  of  litigation  to  another,  and 
thus  turning  the  plaintiff  round  to  a  new  pursuit  of  a  new  defendant,  who 
in  his  turn  may  play  the  same  game.  See  11  Vez.  194.  13  Vez.  120. 
Amb.  676. .  2Atk.  174.  3  Atk.  392.  4  John.  577,  &c.  I  am  aware, 
indeed,  of  only  one  case  in  which  a  purchaser  ^^enJen^e  lite  is  nof  consider- 
ed as  affected  by  the  lis  pendens,  unless  he  has  actual  notice.  It  is  the  case 
of  a  subsequent  purchaser  for  valuable  consideration,  without  actual  7iotice 
of  an  unrecorded  mortgage,  to  foreclose  which  a  suit  is  depending.  Such 
subsequent  purchaser  is  considered  as  protected  by  the  act  of  assembly, 
which  declares  the  prior  unrecorded  deed  void  except  as  to  subsequent  pur- 
chasers with  notice.  Now  it  is  said  that  the  lis  pendens  derives  not  its  ef- 
fect from  its  having  the  force  of  corstructive  notice,  but  from  a  principle 
of  policy  as  before  explained  :  that  various  considerations  prove  this,  and 
that  be  this  as  it  may,  the  statute  has  overruled  this  principle  of  law  in  the 
case  of  a  lite  pendente  purchaser  after  an  unrecorded  mortgage.  2  Rand. 
103,  104.     19  Vez.  439. 

6.  But  though  a  lis  pendens  has  been  said  to  operate  as  notice  to  the  pur- 
chaser, yet  the  decrees  of  a  court  of  equity  are  not  of  themselves  notice, 
except  interlocutory  decrees,  which  do  not  determine  the  suit ;  for  though 
all  persons,  it  is  said,  are  presumed  to  be  conusant  of  the  proceedings  iri 
the  courts  of  justice,  yet  such  knowledge  is  not  to  be  presumed  as  to  mat- 
ters no  longer  depending,  but  settled  and  determined.     Sug.  538. 

7.  The  better  opinion  seems  to  be,  that  being  witness  to  the  execution 
of  a  deed  will  not  of  itself  be  notice  :  for  the  notion  which  formerly  pre- 
vailed, that  it  amounted  to  notice,  was  founded  upon  the  presumption  that 
the  witness  must  have  been  privy  to  the  contents  of  the  deed.  But  this  is 
not  in  practice  usually  the  case  :  nor  has  the  witness  a  right  to  demand  to 
know  the  object  of  the  instrument  which  he  attests.  It  would  therefore  be 
harsh,  indeed,  to  affect  him  with  constructive  notice  from  such  a  circum- 
stance.    See  Sug.  547. 

8.  The  question  as  to  the  character  of  the  notice  which  is  sufficient  to 
affect  a  subsequent  purchaser  with  knowledge  of  a  prior  unrecorded  deed, 
seems  to  have  given  rise  to  some  difference  of  opinion  :  some  seeming  to 
suppose  that  actual  notice  is  necessary,  and  that  what  is  called  constructive 
jlotice  will  not  suffice.  Sug.  509,  510.  That  the  notice  should  in  such' 
case  be  clear  and  undoubted,  seems  an  obvious  consequence  from  the  con- 
sideration that  the  postponement  of  the  second  purchaser,  who  under  the 
operation  of  the  act  has  the  legal  title,  is  in  such  cases  founded  upon  the 
notion  of  fraud ;  and  fraud  must  always  be  established  by  clear  and  satis- 
factory evidence.  But  it  has  been  remarked  by  a  distinguished  judge,  that 
he  "  cannot  feel  the  force  of  the  observation  frequently  thrown  out  in  mo- 
dern cases,  that  a  notice  to  afiect  a  subsequent  purchaser,  after  an  unregis- 
tered deed,  must  be  actual  and  such  as  to  affect  his  conscience,  and  not 
constructive  :  for  a  notice  proved  by  circumstances  to  exist,  affects  the  con- 
science of  the  party  as  much  as  if  proved  by  direct  evidence."  "  I  see  no 
reason  why  a  difference  should  be  made  between  the  case  of  a  purchaser 
after  an  unrecorded  deed,  and  the  purchaser  of  a  legal  title  subject  to  any 
other  equity,  as  to  the  proof  of  the  notice  which  ought  to  be  held  to  bind 
them,  and  in  all  such  cases  the  purchaser  is  confessedly  bound  by  construc- 
tive as  well  as  by  actual  notic'e  ;  see  1  Wash.  41 ;  and  that  because  Ms* 

VOL.  2—57 


450  TllUSTS.  [books; 

conscience  is  affected  and  he  is  guilty  of  fraud."  2  Rand.  101.  And  by 
a  no  less  distinguished  judge,  the  subsequent  purchaser  was  held  to  be  af- 
fected by  the  recital  in  one  of  the  deeds,  necessary  in  the  deduction  of  his 
title,  of  the  existence  of  a  prior  unregistered  deed,  without  direct  evidence 
of  his  having  perused  itj  or  of  his  knowing  its  contents.  Per  Carr,  Aliens- 
worth  vs.  Murray,  Winchester  Chancery  Court. 

It  may  be  proper  to  add  here,  that  possession  is  always  considered  as  no- 
tice of  any  equity  the  person  in  possession  may  have  to  the  estate.  Sug. 
543.     2Mun.  129.     13  Vez.  121.     2  Vez.  jr.  439. 

Second.  Having  thus  examined  what  constitutes  notice,  I  purposed 
next  to  inquire  how  far  the  purchase  must  be  completed  before  notice,  so 
that  the  subsequent  purchaser  will  not  be  affected  with  the  trust  or  an  in- 
cumbrance. Here  the  rule  distinctly  is,  that  the  purchase  must  be  complete 
before  notice,  or  the  purchaser  will  be  affected  by  it.  If,  therefore,  either 
the  purchase  money  be  unpaid,  or  the  purchaser  has  not  completed  his  title 
by  having  a  conveyance  before  he  receives  notice,  the  notice  will  affect  him  ; 
for  if  he  receive  that  notice  before  both  of  those  acts  are  perfected,  he  ought 
to  stop  until  the  equity  is  inquired  into,  or  he  will  be  bound  by  it.  1  Wash. 
41.     3  H.  &  M.316.     1  Munford,  38.     Sugden,  530,  556. 

It  is  not  difficult  to  perceive  that  where  a  subsequent  purchaser  receives 
notice  before  he  has  paid  his  purchase  money,  and  of  course  can  sustain  no 
loss  except  that  of  a  good  bargain,  a  court  of  equity  ought  to  consider  a 
subsequent  payment  by  him  fraudulent;  and  should  make  him  the  sufferer 
fbr  proceeding  to  complete  his  contract  and  his  payments  for  property  which 
he  knows  to  belong  in  justice  to  another.  But  it  is  at  first  not  so  easy  to 
•  see  why  if  A,  the  subsequent  purchaser,  has  paid  his  purchase  money  be- 
fore he  has  the  least  notice  of  B's  prior  equitable  claim,  he  should  not  be 
permitted  to  go  on  to  secure  himself  by  obtaining  the  legal  title  from  their 
common  vendor.  Yet  this  is  in  strict  consonance  with  justice,  and  in 
strict  analogy  with  equitable  principles.  To  understand  it  we  must  advert' 
to  a  principle  which  prevails  in  equity  not  less  than  at  law.  "  Qui  prior 
est  teinpoje  potior  est  jure."  Where  two  equities  are  equal,  the  prior  equi- 
ty shall  prevail.  Ln  the  case  supposed,  then,  B  having  made  the  first  pur- 
chase, and  having  the  prior  equity,  must  prevail  over  A  in  a  mere  contest 
of  equities  :  and  if  the  vendor  refused  to  make  title  to  either,  and  a  suit 
were  brought  in  equity  for  a  title,  the  court  would  obviously  decree  the  con- 
veyance to  be  made  to  B.  Such,  then,  being  the  case,  as  soon  as  A  has 
received  notice  of  the  prior  equity  of  B,  he  becomes  at  once  apprised  of  the 
fact  that  B  has  the  best  right  to  the  land.  It  is  then  obviously  a  fraud  in 
him  to  proceed  to  get  a  title  to  that  property  which  he  knows  belongs  to 
another,  though  the  formality  of  a  conveyance  has  not  been  complied  with. 
If,  however,  the  subsequent  purchaser. had  obtained  his  title,  without  actual 
notice,  and  also  paid  part  of  his  purchase  money  without  notice,  I  should 
presume  that  as  to  so  much  as  he  has  sopaid  he  would  be  protected,  and 
the  estate,  if  decreed  to  the  prior  purchaser,  would  be  charged  with  such 
amount.     Sed  qnare. 

In  connexion  with  this  subject  of  notice  it  must  be  remarked,  that  where 
there  is  a  succession  of  derivative  purchasers,  however  numerous,  if  any 
one  has  been  a  bona  fide  purchaser  toi^Aoui  ?io/ice,  all  o/ifer  Aim  arc  protected 
thereby,  although  they  may  themselves  have  had  express  notice.  For  if  no 
person  who  had  notice  could  safely  purchase  from  the  purchaser  without 
notice,  the  protection  rendered  him  by  a  court  of  equity  would  be  circum- 
scribed and  imperfect:  since  the  field  of  competition,  if  he  desired  to  sell, 
would  thus  be  limited  to  those  only  who  had  no  notice  of  the  latent  equity, 
and  he  would  be  rendered  unable  to  sell  at  all,  or  at  least  for  a  fair  and  full 
compensation.     Sug.  531.     Hence,  not  only  is  a  purchaser  u;i/Ao«<  notice 


«5 


CHAP.  21.]  TRUSTS.  451 

from  a  purchaser  with  notice  protected,  but  in  like  manner  a  purchaser  with 
notice  from  a  purchaser  without.     See  4  Mun.  313.     6  Man.  42. 

But  though  the  estate  in  the  hands  of  a  purchaser  without  notice  from  a 
purchaser  with  notice  is  protected,  yet  the  latter  having  been  once  liable  by 
reason  of  his  fraud  in  purchasing  property  which  he  knew  belonged  to 
another,  and  having  sold  it,  becomes  thereby  personally  liable,  1  conceive,  to 
the  party  injured,  although  while  he  retained  the  estate  he  was  not  person- 
ally responsible.     2  Vern.  Ferrars  vs.  Cherry. 

Thirdly.  We  proposed  to  inquire  how  far  the  purchaser  from  a  trustee, 
or  other  person  standing  in  his  situation,  is  bound  to  see  to  the  application 
of  the  purchase  money,  if  he  has  no  notice  of  the  trust. 

As  to  personalty,  it  would  seem  that  the  purchaser  from  an  executor  is 
not  bound  to  see  to  the  application  of  the  purchase  money,  whether  the 
trusts  declared  concerning  it  are  limited  and  defined  or  not.  Sug.  367. 
For  the  personalty  goes  to  the  executor  for  the  payment  of  debts,  and  he 
is  the  legally  constituted  judge  of  the  manner  in  which  it  is  to  be  applied  ; 
and  it  would  lay  an  embargo  upon  executors'  sales  if  every  purchaser  from 
an  executor  was  held  bound  to  see  that  the  money  paid  by  him  was  not 
misapplied.  But  as  to  trusts  in  real  estate,  the  general  rule  is  otherwise, 
where  the  trusts  declared  of  the  purchase  money  are  limited  and  defined, 
and  not  general  and  unlimited.  Sug.  267.*  Thus  if  I  purchase  of  a  trus- 
tee an  estate  charged  with  the  payment  of  a  specific  sum  to  A,  I  know  that 
A  is  to  get  so  much  of  the  money,  and  equity  considers  me  bound  to  see 
that  he  is  paid  ;  and  if  I  pay  to  the  trustee  and  he  fails  to  pay  over  to  A,  I 
am  held  responsible.  There  seems  at  first  view  to  be  something  unreason- 
able in  this,  since,  as  a  confidence  is  reposed  in  the  trustee,  a  payment  to 
him  would  seem  to  be  within  the  limits  of  that  confidence.  But  in  answer 
to  this  it  may  be  said,  that  the  law  being  otherwise  settled,  every  purchaser 
knows  that  the  payment  to  the  trustee  is  not  within  the  limits  of  the  con- 
fidence reposed,  unless  the  deed  itself  otherwise  provides  ;  and  hence  where 
a  trust  is  raised  by  deed  or  will  for  sale  of  an  estate,  and  it  is  designed 
to  exempt  the  purchaser  from  the  necessity  of  seeing  that  the  purchase 
money  is  properly  applied,  it  is  always  proper  to  insert  a  clause  that  the  re- 
ceipts of  the  trustees  shall  be  sufficient  discharges  for  the  purchase  money. 
Sug.  366.  There  are,  it  is  true,  many  cases  in  which  such  a  clause  would 
be  unnecessary,  because,  from  the  nature  of  the  case  or  of  the  trust,  the 
obligation  would  not  be  imposed  upon  the  purchaser  to  see  to  the  applica- 
tion of  the  purchase  money.  Thus,  although  in  the  case  of  a  trust  crea- 
ted by  will  for  the  payment  of  scheduled  debts,  or  of  legacies  which  are 
specified  and  defined,  the  purchaser  is  bound  to  see  that  the  money  is  ap- 
plied accordingly,  since  here  he  knows  to  whom  the  money  is  to  go;  yet 
■where  the  trust  is  for  payment  of  debts  generally,  he  is  not  so  bound,  al- 
though he  has  iiotice  of  the  debts :  for  he  cannot  be  expected  to  see  to  the 
execution  of  a  trust  so  unlimited  and  undefined  :  and  moreover  he  would 
in  such  case  have  to  judge  as  to  the  justness  and  amount  of  each  debt  in 
this  case,  a  difficulty  which  does  not  exist  where  the  debts  are  specified  and 
ascertained.  And  it  is  the  same  thing  where  the  trust  is  for  payment  of 
-debts  generally,  and  the  residue  is  bequeathed  in  legacies  ;  because,  to  hold 
that  he  must  see  the  legacies  paid,  must  involve  him  first  in  the  account  of 
the  debts,  which,  being  general,  he  is  not  bound  to  look  to.  Sug.  368.t 
And  though  before  his  purchase  the  debts  have  been  ascertained,  yet  it  is 
not  his  business,  (if  the  trust  is  for  payment  of  debts  generally,)  but  the  bu- 
siness of  the  court,  to  see  the  money  applied.     Where  lands  are  devised  in 

*.SeeCo.  Litt.249.    But.  note.    Also.  6  Vez.G54. 

t  But  from  the  time  the  debts  are  paid  or  ascertained,  if  the  purchaser  has  notice  of  it,  lie  will  be 
bound  to  see  to  payment  of  legacies.    See  Preston  en  Abstracts,  2'^. 


452  TRUSTS-  [book  a. 

.trust  to  be  sold  for  the  benefit  of  infants  or  persons  unborn,  and  the  time 
required  for  the  sale  arrives  before  they  are  capable  of  receiving  their  lega- 
cies, the  purchaser  is  not  bound  to  see  to  the  application  of  the  purchase 
money.  But  where  there  is  but  a  charge  on  an  estate  for  an  infant  payable 
at  his  full  age,  and  the  heir  sells  before  that  time  arrives,  the  estate  will  be 
liable  in  the  hands  of  the  purchaser,  if  the  money  be  wasted  or  misapplied, 
or  even  vested  in  funds  which  afterwards  prove  deficient;  3  Br.  C.  C.  19; 
unless,  I  presume,  the  investment  were  made  by  direction  of  the  court.  In 
the  case  of  lands  charged  with  annuities,  the  lands  always  continue  liable  in 
the  hands  of  the  purchaser  from  the  very  nature  of  the  charge.     Sug.  372.* 

It  is  said  that  though  the  trusts  are  defined,  yet- where  the  money  is  noi 
merely  to  be  paid  over  to  third  persons,  but  is  to  be  applied  by  the  trustee 
upon  trusts  which  require  time  and  discretion,  as  where  it  is  to  be  laid  out 
in  the  purchase  of  estates,  the  purchaser  is  not  bound  to  see  to  its  applica- 
tion. See  16  Vez.  151,  cited  Sug.  370.  And  where  the  trust  requires  an 
investment  of  the  money  in  the  funds,  if  the  purchaser  sees  the  investment 
made,  he  is  bound  for  no  subsequent  misapplication.     Sug.  370. 

A  difference  of  opinion  seems  to  prevail  among  the  profession  as  to  the 
liability  of  the  purchaser  to  see  to  the  application  of  the  money  "  lohere  there 
is  a  hand  appointed  to  receive  it."  This  subject  is  discussed  by  Mr.  Sug- 
den,  and  the  cases  touching  on  it  are  reviewed  in  his  work.  Sug.  372.  It 
would  seem  that  Lord  Kenyon  and  the  late  master  of  the  rolls  concurred 
in  the  impression  that  trustees  having  the  power  to  sell,  they  must  have  the 
power  incident  to  the  character,  viz.  that  of  giving  a  discharge.!  This,  in- 
deed, would  seem  to  be  the  common  sense  view  of  the  subject,  nor  would 
it  have  entered  into  the  conception  of  an  ordinary  man,  I  am  persuaded, 
that  the  powers  of  a  trustee — so  much  confided  in — would  be  less  strong 
than  those  of  an  attorney  in  fact — or  an  ordinary  agent.  Yet  the  opinions 
of  the  English  tribunals  on  this  subject  appear  to  have  been  recognized 
with  us,  and  acted  upon  accordingly  ;  and  cases  have  occurred  within  my 
owji  knowledge  where  the  purchaser  has  been  held  liable  to  the  misappli- 
tion  of  the  purchase  money  by  the  trustee,  though  the  powers  vested  in 
him  by  the  trust  were  of  the  most  extensive  character.  Orr  vs.  Graff,  Win- 
chester Chancery  Court,  per  Browne  Judge,  and  Castleman,  &c.  vs.  Worme- 
Jey,  in  the  Federal  Court. 

It  seems  to  be  the  better  opinion,  that  where  there  is  a  trust  to  raise  so 
much  money  as  will  supply  the  deficiency  of  the  personal  estate  in  pay- 
ment of  debts,  the  purchaser  is  not  bound  to  ascertain  the  deficiency  ;  but 
where  there  is  a  mere  pou'er  it  is  otherwise.  For  in  the  case  of  a  mere 
power,  the  power  does  not  arise  unless  the  deficiency  exists,  and  conse- 
quently cannot  be  duly  executed.  Sug.  378.  The  difference  seems  to 
grow  out  of  the  distinction  between  a  mere  power,  and  a  power  coupled 
with  an  interest,  or  an  express  trust,  to  which  we  have  more  than  once  had 
occasion  to  advert. 

Where  a  purchaser  is  bound  to  see  to  the  application  of  the  purcJiase 
money,  and  the  trust  is  for  payment  of  debts  and  legacies,  he  must  see  the 
money  actually  paid  to  the  creditors  or  legatees  ;  and  each  purchaser  should 
have  a  receipt  iioin  each  legatee  or  creditor,  or  a  bill  may  be  filed  for  pay- 
ing the  money  into  court,  wliich  is  the  surest  way  ; — or,  if  the  legatees  or 
creditors  arc  i'cw  in  number,  they  may  be  joined  in  the  conveyances,  as  par- 
ties, in  testimony  of  their  being  satisfied  ;  or  they  may  unite  in  an  assign- 
jncnt  of  all  their  interests  to  one  person,  who  may  give  receipts  or  join  iii 

*3  PiTston  on  Abstracts,  2C5,  357.  350. 

tin  ClowninK  vk-  Cox,  at  Fredcrickshnror,  I  was  of  opinion  that  tlie  trustee  in  n  deed  of  IniPt  lo 
f;pciire  tlie  pnvment  of  a  debt,  was  the  ngeiit  of  ilie  creditor  to  receive  liio  proceeds  of  sale,  :.nd  that 
the  ptircliaser  was  not  bound  to  sec  to  llic  application  of  the  puiciiase  nione^'. 


oiiAP.  21.]  TRUSTS.  45S 

the  conveyances.  Where  there  is  more  than  one  trusted,  and  it  is  provid- 
ed that  their  receipt  shall  be  a  discharge,  all  must  join  who  accept  the  trust, 
and  this  though  one  has  released  the  estate  to  the  others  ;  for  though  his 
release  may  pass  the  estate,  he  cannot  delegate  the  personal  confidence  re- 
posed in  him  ;  for  the  rule  is  delegatus  non  potest  delegare.  But  where  one 
refuses  to  accept  the  trust,  it  is  the  same  thing  as  if  he  had  never  been  ap- 
pointed. 1  Vent.  128.  3  East's  Rep.  410.  Sug.  381. 
•  The  rules  respecting  the  liability  of  a  purchaser  to  see  to  the  application 
of  the  purchase  money,  appear  to  be  the  same  whether  the  estate  be  devis- 
ed for  payment  of  debts,  or  there  is  a  mere  charge:  for  a  charge  in  effect 
creates  a  trust,  the  heir  being  impliedly  the  trustee.     Sug.  37],  372. 

In  concluding  this  subject  of  the  protection  of  a  subsequent  purchaser 
without  notice,  who  has  obtained  the  legal  title,  it  is  proper  to  remark  that 
whether  notice  be  or  be  not  charged  in  the  bill,  the  purchaser,  to  protect 
himself,  must  deny  it.  3  P.  Wms..243.  2  John.  155.  Sug.  556.  The 
proper  mode  of  defence  for  the  purchaser  is  a  plea  and  answer ;  though  the 
answer  in  this  case  should  only  be  to  the  fact  of  notice,  or  of  other  matter 
in  support  of  the  plea.  For  the  defence  really  is,  that  the  party  being  pur- 
chaser of  the  legal  title  without  notice,  is  not  bound  to  answer,  and  it  is  a 
defence  which  ought  to  be  made,  it  seems,  by  plea  and  not  by  answer;  and 
if  he  answers  to  any  thing  to  which  he  may  plead,  he  overrules  his  plea. 
By  the  plea  he  puts  himself  upon  his  legal  title: — by  answering  to  the  ge- 
neral allegations  of  the  bill,  he  submits  to  go  into  the  equitable  matter,  and 
thus  it  is  overruled.  It  is  therefore  best  to  rest  the  defence  on  the  plea, 
only  supporting  it  by  a  denial  of  notice  in  the  answer,  which  is  necessary, 
perhaps,  that  the  plaintiff  may  have  an  opportunity  to  except. 

The  plea  should  succinctly  state  the  deeds  of  purchase,  setting  forth 
dates,  parties,  and  contracts  briefly,  and  the  time  of  their  execution,  which 
last  is  all  important:  it  must  distinctly  aver  that  the  consideration  money 
was  bona  fide  and  truly  paid,  which  must  appear  otherwise  than  by  the  re- 
cital in  the  deed  ;— and  the  consideration  itself,  it  appears,  should  be  stat- 
ed :  it  must  positively — not  evasively — deny  notice  of  the  plaintiff's  title  or 
claim  previously  to  the  execution  of  the  deed,  and  payment  of  the  purchase 
money ;  for  till  then  the  transaction  is  not  complete  ;  and  if  circumstances 
to  show  notice  or  fraud  are  charged,  he  should  deny  them  specially  and 
distinctly.  This  plea  must  be  on  oath,  and  accompanied  by  an  answer  also 
denying  notice  and  all  charges  of  fraud.     Sug.  chap.  18. 

2.  With  respect  to  the  implied  lien  of  the  vendor  on  the  property  sold 
for  the  payment  of  the  purchase  money,  the  doctrine,  after  having  been  very 
much  discussed,  seems  at  length  to  have  settled  down  upon  some  acknowl- 
edged principles.*  1.  It  is  a  doctrine  that  does  not  apply  to  personal  pro- 
perty, unless  the  vendor  retains  the  title  ;  3  Mun.  99;  though  a  lien  may 
be  raised  even  upon  personal  property  sold,  at  the  pleasure  of  the  contract- 
ing parties,  if  their  intention  explicitly  appears:  but  "not  so  as  to  tie  up 
the  use  of  the  property,  nor  to  bind  the  party  to  have  it  forthcoming,  or 
even  to  have  forthcoming  a  like  amount  of  the  same  kind  of  property,  but 
only  to  bind  him  to  make  good  what  may  be  wasted  by  fraud,  misconduct, 
or  wilful  default,  and  to  surrender  the  residue  in  satisfaction  of  the  debt."' 
5  Mun.  507.     This,  indeed,  cannot  properly  be  called  a  lien.     2.  If  the  ti- 


y 


*  Tliere  are  strong  reasons  of  policy  against  llie  extension  of  tliis  doctrine.  The  wisclom  of  its  in- 
IrotUiction  into  our  courts  from  llie  civil  law  may  well  be  questioned.  When  a  piirty  contemplates  a 
lien,  it  would  be  more  fair  as  well  as  more  safe,  that  he  should  take  an  express  lien  and  place  it  upon 
t!ic  record.  The  recognition  of  an  implied  lien  for  purchase  money,  and  the  extension  of  the  lien  to 
the  property  in  the  hands  of  subsequent  purchasers,  is  pregnant  with  mischief.  It  brings  ruin  upoii 
the  innocent,  and  tempts  the  unprincipled  to  shun  it  by  perjury  in  themselves  and  subornation  of 
others.  Upon  the  whole,  I  incline  to  think  thedoctrine  is  not  a  favorite  of  our  courts,  and  will  not  be 
extended  beyond  the  limits  already  too  firmly  established  to  be  changed  without  the  exercibe  of  le- 
jgislative  power. 


454  TRUSTS.  [books. 

tie  be  not  made,  the  vendor  has  a  lien  on  the  property  sold  for  the  payment 
of  the  purchase  money,  though  he  has  taken  security,  and  the  property  has 
been  sold  by  the  vendee  to  another;  1  Rand  53  ;  unless  (I  presume)  there 
is  an  express  engagement  to  absolve  the  land,  in  which  event  a  purchaser 
from  the  vendee  would  be  protected.*  3.  Where,  however,  the  vendor  ^as 
made  a  conveyance  and  also  taken  security ,  the  lands  are  discharged  even  in 
the  vendee's  hands.  5  Mun.  297.*  4.  Where  the  vendor  has  made  the 
conveyance  but  taken  no  security,  the  property  is  liable  in  the  hands  of  the 
vendee,  or  of  a  purchaser  from  him  with  notice  that  the  purchase  money 
was  unpaid,  but  is  discharged  in  the  hands  of  a  purchaser  ivithout  notice. 
2  Wash.  141.  5.  A  bond  of  the  vendee  or  vendor,  without  a  surety,  is 
not  such  a  security  as  will  deprive  the  vendor  of  his  lien.  2  Rand.  429. 
6.  If  two  persons  purchase  jointly,  and  one  pays  more  than  "the  other,  he 
has  a  lien  for  the  excess  except  against  purchasers  without  notice.  2  Rand. 
428.  4  Ran.  272.  7.  A  mortgage  by  the  vendee  made  with  his  vendor's 
assent,  to  secure  the  purchase  money  due  by  his  vendor  to  a  prior  vendor, 
is  a  waiver  of  the  general  lien  for  the  excess  due  to  the  last  vendor  from 
the  vendee.  Gilra.  329.  8.  It  would  seem,  however,  that  if  the  vendor 
takes  a  mortgage  which  he  is  by  accident  prevented  from  having  recorded, 
so  that  it  is  invalid,  the  original  lien  is  not  destroyed.  See  Childerso.  Smith, 
Gilm.  196.  9.  The  lien  as  against  third  persons  is  only  in  rein,  not  in  perso- 
nam. 6  John.  C.  R.  402.  See6Mun.439.  Sed  Qucere, — if  a  purchaser  i6"i//i 
notice  from  the  vendee,  sells  to  a  Y>ur chaser  without  notice,  is  not  the  former 
then  personally  responsible  ?  See  2  Vern.  Ferrars  rs.  Cherry.  10.  Not- 
withstanding the  position  that  the  lien  is  confined  to  the  vendor  and  vendee, 
and  will  not  extend  to  a  third  person,  yet  the  surety  in  a  bond  for  the  pur- 
chase money  may  be  substituted  to,  and  have  the  advantage  of,  the  ven- 
. dor's  lien.  2  Rand.  429.  See  6  John.  404.  The  case  of  Pollexfen  vs. 
Moore,  (3Atk.  272,)  in  which  Lord  Hardwicke  is  said  to  have  expressed 
the  opinion  that  the  lien  only  exists  as  between  vendor  and  vendee,  and 
does  not  extend  to  third  persons,  is  obscure  and  supposed  to  be  badly  re- 
ported. It  is  now  said  that  "  he  meant  only  to  deny  that  the  purchased  es- 
tate and  the  personal  estate  can  be  marshalled  ;  in  other  words,  that  the 
equitable  rule  which  says  that  he  who  has  two  securities  shall  so  use  them 
that  he  who  has  but  one  may  not  be  defeated,  does  not  extend  lo  the  equi- 
table lien  ;  and  even  this  doctrine  is  shaken  in  Macreth  vs.  Simmons.  15 
Vez.  329."     2  Rand.  430.t 

For  the  doctrines  as  to  the  vendor's  lien,  see  the  case  of  Macreth  vs. 
Simmons  at  large,  and  2  Rand.  429,  and  the  cases  there  cited.  See  also 
Sugden's  Vendors  on  this  subject. 

Under  the  head  of  trusts  we  may  properly  consider  the  doctrine 
Of  money  directed  to  be  converted  into  land,  or  land  into  money.  It  is  an 
established  principle  that  money  directed  to  be  employed  in  the  purchase 
of  land,  and  land  directed  to  be  sold  and  turned  into  money,  are  to  be  con- 
sidered as  that  species  of  property  into  which  they  are  directed  to  be  con- 
verted ;  1  Rand.  320  ;  in  like  manner  as  after  a  purchase  of  land,  and  be- 
fore the  conveyance  is  made,  the  vendor's  interest  in  the  property  is  con- 
sidered as  personal,  and  the  vendee's  as  real.  All  this  is  on  the  principle 
that  equity  considers  as  done  what  ought  to  have  been  done,  and  will  per- 
mit no  act  or  omission  of  the  person  it  considers  a  trustee,  to  injure  the 
cestui  que  trust,  or  impair  his  rights.  Thus  if  by  will  lands  are  directed  to 
be  sold  and  converted  into  money,  and  the  proceeds  paid  to  A,  here  a  con- 
version of  realty  into  personalty  having  been  directed  by  the  will,  a  court  of 

*  A  raortgRge  supersedes  the  lien.    2  Leigh,  353, 

t  The  vendor'*  lien  does  not  give  him  any  claim  to  the  profits.    2  Leigh,  353. 


CHAP.  21.]  TRUSTS.  455 

equity,  upon  the  principle  above  mentioned,  considers  the  conversion  as 
having  actually  taken  place,  and  regards  the  land,  even  before  an  actual  sale, 
in  the  light  of  money  :  so  that  if  A  dies  it  will  go  to  his  executor  as  money, 
and  be  subject  to  debts,  instead  of  going  to  his  heir  as  real  estate.  In  like 
manner,  money  directed  to  be  laid  out  in  land  is,  even  before  it  is  so  laid 
out,  considered  as  land  with  all  the  qualities  of  real  estate  ;  and  if  the  de- 
visee in  that  case  dies,  his  widow  would  be  entitled  to  dower  in  ihemoney, 
and  it  would  go  to  his  heir  as  land  itself  would  have  gone,  instead  of  going 
to  the  executor  as  money  usually  does.  See  1  Mad.  289,  317.  2  Mad.- 
JOS.  And  this  grows  directly  out  of  the  principle  that  a  trustee  shall  neith- 
er by  his  act  or  omission  affect  or  alter  the  rights  of  parties.  For  if  the  du- 
ty had  been  performed,  the  conversion  would  have  been  actually  made  ;  and 
if  the  death  of  A,  before  the  trustee  had  performed  the  duty  required  of 
him,  had  the  effect  of  leaving  the  bequest  with  the  character  of  realtyj. 
though  it  was  intended  to  have  been  made  personal,  the  interest  would  go 
to  the  heir  at  law  (e.  g.  the  eldest  son)  to  the  exclusion  of  his  brothers  and 
sisters  :  whereas,  if  it  had  been  converted  into  money  as  directed,  it  would 
have  been  distributed  among  them  all.  And  so  mutatis  mutandis  of  money- 
directed  to  be  laid  out  in  land.  The  general  principle  therefore  is,  that 
money  directed  to  be  laid  out  in  land  shall  be  considered  as  land  (i.  e.  part 
of  the  real  estate  of  the  devisee  ;)  and  land  directed  to  be  converted  into 
money  shall  be  considered  as  money,  i.e.  part  of  the  personal  estate  of  the 
devisee.  I  say  "of  the  devisee"  to  guard  against  an  error  which  I  have 
heard  committed  ;  the  error  of  supposing  that  a  direction  by  the  will  of  A 
to  sell  his  lands  and  pay  the  money  to  B,  makes  the  lands  part  of  A's  per- 
sonal estate,  and  so  subject  to  debts.  Such  1  conceive  is  not  the  law ; 
(see  1  Vez.  &  B.  174,  1  Hov.  Sup.  121 ;)  though  if  there  be  a  positive  di- 
rection to  sell,  and  no  direction  as  to  the  application  of  the  proceeds  of 
sale,  the  funds  might  be  subject  to  distribution,  (2  Mad.  Ill,)  or  pass  to  a 
residuary  legatee  under  the  will.  7  Vez.  299.  But  though  a  court  of  equi- 
ty will  consider  land  as  money,  or  money  as  land,  under  the  circumstances 
above  mentioned,  yet  if  the  conversion  of  land  into  money  has  been  direc- 
ted by  \yill  or  deed  for  a  particular  purpose,  as  to  pay  debts  or  to  raise  por- 
tions, if  the  purpose  fails,  or  is  accomplished  without  a  conversion,  the  in- 
tention fails  ;  and  a  court  of  equity  considers  it'as  if  no  conversion  had  been 
directed.  It  is  important,  therefore,  to  ascertain  whether  the  testator  or 
grantor  intends  to  give  to  real  estate  the  quality  oi  personal  to  all  intents, 
(or  vice  versa  the  quality  of  realty  to  personal  estate,)  or  only  so  far  as  re- 
spects certain  particular  purposes.  In  the  former  case,  the  character  being 
imperatively  fixed  by  the  will, — the  change  of  the  nature  of  the  property 
being  definitively  required,  it  is  considered  as  efi'ected  by  the  very  requisi- 
tion. But  in  the  latter  case  so  much  of  the  estate  as  is  not  disposed  of  re- 
sults, in  case  of  realty,  to  the  heir.     2  Mad.  109,  110. 

We  may  now  advance  one  step  farther.  Where  the  character  of  person- 
alty is  not  imperatively  fixed  upon  real  estate,  but  the  conversion  of  it  is 
only  for  particular  purposes,  the  heir  to  whom  the  trust  results  as  to  the 
residue  may  come  in  and  satisfy  those  purposes,  and  thus  prevent  a  sale  of 
the  realty.     2  Vern.  425. 

In  like  manner,  if  by  my  will  I  direct  my  real  estate  to  be  sold,  and  the 
proceeds  of  sale  to  be  paid  to  A,  here  A  has  the  whole  beneficial  interest; 
and  is  regarded  as  the  real  owner  of  the  estate  ;  and  therefore,  however  im- 
peratively the  character  of  personalty  is  fixed  upon  the  estate  by  the  will, 
yet  A  will  be  permitted  in  a  court  of  equity  to  elect  to  take  the  property 
without  conversion.  For  as  no  one  has  any  interest  in  gainsaying  this,  and 
as  in  case  of  sale  to-day  he  might  re-purchase  with  the  proceeds  to-morrow, 
and  as  in  so  doing  he  might  possibly  sustain  a  loss,  equity  at  once  accedeas- 


456  TRUSTS.  [  BOOK  3. 

to  his  election  to  make  the  real  estate  his  own,  without  converting  it  accord- 
ing to  the  will  or  deed.     See  5  Mun.  127. 

Now  this  right  of  election,  it  is  obvious,  has  been  introduced  for  his  ben- 
efit. It  will  not,  therefore,  be  cast  upon  any  one  to  his  prejudice,  and  thus 
an  alien  has  not  in  such  case  a  riglit  of  election.  See  5  Mun.  127,  156. 
Cow.  464.  3  Wheat.  563.  Nor  can  a  husband  elect  to  make  his  wife's 
property  real  or  personal  at  his  pleasure.  4  Ran.  397.  See  Pratt  rs.  Talia- 
ferro, 3  Leigh.  Nor  can  an  infant  in  general  elect :  2  Br.  C.  C.  57.  5 
Mun.  127;  though  where  a  sale  has  been  made  manifestly  to  the  advantage 
of  an  infant,  a  court  of  equity,  it  seems,  may  elect  for  him,  and  confirm  the 
sale.  1  Fonb.88,  n.  f.  3  John.  C.  C.  190,  cited  2  Rand.  407.  So,  too,  if 
the  fund  is  to  be  distributed  among  various  persons  :  if  they  are  all  sui  juris 
they  may  unite  in  electing  that  the  property  directed  to  be  converted  shall 
retain  its  original  character :  but  if  any  are  incapable  so  to  elect,  or  some 
refuse,  then  the  character  impressed  by  the  will  or  instrument  remains  un- 
changed.    1  Br.  C.  Cases,  Ackroyd  vs.  Smithson.* 

Money  thus  directed  to  be  laid  out  in  land  may,  in  consonance  with  these 
principles,  descend  as  land  from  generation  to  generation.  2  Br.  C.  C.  57. 
But  any  individual  in  whom  the  right  to  it  at  any  time  becomes  vested,  may, 
if  he  chooses,  by  any  act  of  his,  give  it  a  different  character.  Thus  if  I 
by  my  will  direct  ,£1000  to  be  laid  out  by  my  executor  A,  in  land  for 
the  use  of  B,  the  character  of  realty  is  definitely  impressed  upon  the  pro- 
perty thus  given,  and  it  will  continue  to  descend  as  such  to  the  heirs  of  B, 
until  it  is  actually  laid  out  in  land,  or  until  some  person  to  whom  the  right 
shall  come,  shall  elect  to  take  it  as  money.  This  election,  where  the  fund 
is  in  the  hands  of  a  third  person,  may  be  manifested  by  very  slight  acts,  as 
by  a  declaration  or  writing  to  that  eff'ect,  (8  Vez.  235,)  or  by  a  will  be- 
queathing it  as  money.  But  where  the  fund  comes  to  the  hand  or  the  pocket 
of  the  person  interested  in  it  himself,  and  he  dies,  the  property  Will  be  taken 
to  be  of  that  character  which  it  had  at  his  death,  unless  a  contrary  inten- 
tion be  expressed.  Thus  where  money  was  directed  by  will  to  be  laid  out 
by  a  trustee  in  land,  and  the  interest  in  the  property  became  vested  in  the 
trustee  himself,  who,  being  thus  in  possession  of  the  fund,  died  without  con- 
verting the  money  into  land,  and  without  manifesting  any  intention  to  hold 
it  as  land,  it  was,  in  a  dispute  between  his  real  and  personal  representatives, 
looked  upon  as  money.  1  Br.  C.  C.  223.  This  indeed  seems  reasonable, 
since  his  failure  to  convert  it  when  the  absolute  power  Avas  in  himself,  was 
an  evidence  of  intention  to  hold  it  as  money,  which,  uncontradicted,  ought' 
to  have  been  conclusive. 

For  the  doctrines  on  this  subject  the  student  will  consult  1  Mad.  189, 
317.  2  Mad.  108.  1  Fonb.  413,  &c. ;  and  the  leading  cases  on  the  sub- 
ject, Whelpdale  vs.  Partridge  5  Vez.  388.  8  Vez.  227.  Thornton  vs. 
Hawley,  10  Vez.  129.  Bedulph  vs.  Bedulph,  12  Vez.  161.  Walker  vs. 
Bennc,  2  Vez.  jr.  170.  Kirkman  vs.  Mills,  13  Vez.  338.  Ackroyd  vs. 
Smithson,  1  Br,  C.  C.  503.  Pultney  vs.  Darlington,  1  Br.  C.  C.  Cases,  223. 
Fletcher  vs.  Ashburner,  1  Br.  C.  C.  449.  1  Meriv.  296.  1  Vez.  &  Beame, 
174.  1  Hov.  Sup.  121,  where  the  cases  are  collected.  The  learned  argu- 
ment of  Mr.  Hargrave  in  Pultney  vs.  Darlington,  and  of  Mr.  Scott,  now 
Lord  Eldon,  in  Ackroyd  vs.  Smithson,  are  deemed  particularly  worthy  of 
attention.  See  also  5  Mun.  117.  3  Wheat.  563.  1  Ran.  313.  12  Vez. 
161.     13  Vez.  338. 

*  It  was  Lord  Roslyu's  opinion,  2  Vez.  170,  that  as  between  the  real  and  personal  representative 
of  llie  legatee  or  devisee,  the  property  uma  he  considered  as  of  that  character  which  it  aclualty  had 
at  her  death.  But  this  gross  error  lias  been  long  since  corrected  by  some  o(  the  cases  cited  in  the 
•exi.  These  regard  the  characicr  impressed  l)y  the  will  as  continuing,  unless  there  lias  been  an 
election  by  some  act,  however  slight,  to  take  the  property  in  its  original  character.  5  Vez.. 388.  13 
Vez.  333.    1  Merivale,  Ashby  vs.  Palmer. 


CHAP.  21.]  TRUSTS.  457 

I  have  more  than  once  observed  that  he  who  has  tiie  whole  beneficial  in- 
terest in  an  estate,  is  considered  as  the  owner.  On  like  principles  where 
the  charge  of  creditors  upon  real  estate  amounts  to  the  full  value  of  it,  or 
the  rents  and  profits  will  not  keep  down  the  interest,  it  is  not  unusual  in 
equity  to  direct  a  sale  of  the  estate  for  the  purpose  of  discharging  the  in- 
cumbrances. Of  this,  however,  we  have  perhaps  treated  sufficiently  at 
large  heretofore,  under  the  head  of  executions.  See  also  1  Mac.  403,  481) 
485.     1  Fonb.  440. 

I  shall  now  proceed  to  offer  a  few  remarks  on  the  subject  of 

The  duties  and  powers  of  trustees.  The  cestui  que  trust  being,  in  the  eye 
of  a  court  of  equity,  the  real  owner  of  the  estate,  the  trustee  cannot  keep 
him  out  or  obstruct  his  enjoyment  of  the  profits  of  the  trust-subject  on 
the  terms  and  in  the  manner  prescribed  by  the  trust.  And  in  general  the 
cestui  que  fras/ is  entitled  to  the  actual  possession,  control,  and  management 
of  the  estate,  unless  indeed  it  is  otherwise  provided.  Hence,  as  possession 
is  notice  to  all  the  world  of  any  equitable  interest  which  the  person  in  pos- 
session may  have  in  an  estate,  it  can  rarely  happen  that  the  trustee  can  by 
alienation  aflnect  the  interest  of  cesfwi  que  trust,  since  the  purchaser  with  such 
notice  would  take  subject  to  his  title.  If,  however,  the  trustee  be  in  actual 
possession,  a  purchaser  or  mortgagee  from  him  would  be  protected  if  they 
had  no  notice  of  the  trust.  See  2  Fonb.  170.  It  is  indeed  a  general  rula 
that  no  act  of  the  trustee  shall  be  permitted  to  prejudice  the  cestui  que  trust. 
1  H,  &  M.  49.  2  Fonb.  170.  4  John.  138.  Therefore,  in  case  of  a  fraud- 
ulent sale  by  the  former,  the  latter  may  either  aflirm  the  sale  and  demand 
the  securities  for  payment  to  be  delivered  over  to  him,  even  though  they 
have  been  assigned  to  a  purchaser  with  notice  ;  or  he  may  disregard  the 
sale  and  take  the  land.  4  John.  138.  2  John.  441.  Where,  however, 
the  trustee  being  in  possession,  has  aliened  to  a  purchaser  without  notice, 
though  the  right  of  the  cestui  que  trust  is  gone  in  the  property  itself,  the 
trustee  is  bound  to  make  it  good.  2  Fonb.  171,  173.  2  Mad.  113.  It  is 
considered,  however,  on  the  footing  of  a  simple  contract  demand,  unless 
the  trustee  has  acknowledged  the  debt  under  seal.  1  Aik.  119.  Forres- 
ter, 109.  , 

But  though  no  act  or  omission  of  the  trustee  will  be  permitted  to  work 
an  injury  to  the  cestui  que  trust,'  or  to  affect  his  interest,  and  though,  there- 
fore, in  general,  a  trustee  has  no  right  to  alter  the  nature  of  the  trust  pro- 
perty, as  by  changing  land  into  money  or  money  into  land,  yet  a  distinction 
is  taken  between  those  cases  where  the  cestui  que  trust  is  sui  juris,  and  those 
where  he  is  not.  In  the  former,  such  change  of  the  estate  without  the  as- 
sent of  the  cestui  que  trust,  is  considered  as  clearly  invalid.  In  the  latter 
(as  in  the  case  of  infants)  it  is  very  frequently  necessary  that  such  power 
should  be  exercised  by  the  trustee,  and  the  true  criterion  is  whether  the  in- 
terest of  the  cestui  que  <rMS<  requires  the  conversion.  See  2  Fonb.  171.  It 
is  a  power,  however,  which  should  be  very  cautiously  exerted,  and  never 
unless  the  advantage  is  clear  and  decisive.  Nor  should  I  think  it  prudent 
in  any  case  with  us,  to  act  herein  in  reference  to  an  infant's  estate,  without 
direction  of  the  court  which  has  jurisdiction  over  him  ;  since  our  act  gives 
to  such  court  very  large  powers,  in  directing  the  management  of  his  estate. 

A  like  caution  may,  I  think,  be  recommended  in  relation  to  another  rule 
that  we  find  laid  down  in  the  books;  "that  what  a  trustee  is  compellable 
to  do  by  suit,  he  may  do  without  suit;"  2  Fonb.  175;  for  in  proceeding 
upon  this  principle  he  undertakes  to  decide  what  the  court  would  decree  ; 
and  if  he  mistakes  he  may  thus  subject  himself  to  loss.  In  all  such  cases 
it  is  better  that  he  should  ask  the  instruction  and  direction  of  the  court, 
which  a  trustee  is  always  entitled  to  demand.  See  1  Wash.  246. 
VOL.  2 — 58 


458  TRUSTS.  [book    3 

It  is  a  general  rule  that  the  trustee  must  comply  with  the  terras  of  the 
deed  by  which  the  trust  is  created :  but  the  legal  title  being  vested  in  him, 
if  he  makes  a  sale  and  conveyance,  that  legal  title  passes  and  is  valid  in  a 
court  of  law,  though  it  is  in  violation  of  the  directions  of  the  trust.  Thus 
where  a  trustee  is  authorized  to  sell  upon  notice,  &,c.,  yet  if  he  sells  with- 
out and  executes  a  deed,  the  legal  title  passes.  6  Mun.  358,  367.  But 
the  title  may  be  set  aside  in  equity.  4  Mun.  421.  4  Cranch,  403.  Yet 
we  find  it  decided  (5  John.  447,)  even  in  a  court  of  equity,  that  in  such 
case  a  sale  without  notice  would  be  valid,  and  the  cestui  que  trust  must  look 
to  the  trustee.     I  cannot  think  this  a  correct  doctrine. 

Nor  can  the  trustee  injure  the  cestui  que  trust  by  refusing  to  accept  the 
trust :  for  in  that  case  a  court  of  equity  will  interpose,  and  either  appoint 
new  trustees  or  take  upon  itself  the  execution  of  the  trust.  2  Fonb.  173. 
And  after  a  trustee  has  once  accepted  the  trust,  he  cannot  afterwards  dis- 
charge himself  without  consent,  or  the  direction  of  a  court  of  competent 
jurisdiction.  4  John.  138.  If  he  misbehaves,  indeed,  he  may  be  removed, 
and  so  if  from  circumstances  it  is  obvious  he  can  no  longer  properly  dis- 
charge the  duty:  as  where  a  female  trustee  marries  a  foreigner  whose  re- 
moval to  another  country  is  feared.  4  Vex.  59*2.  If  the  trustee  dies,  the 
court  will  appoint  a  new  trustee.  For  it  is  a  principle  of  the  court,  which 
has  more  than  once  been  mentioned,  that  a  trust  shall  never  be  permitted 
to  fail  for  want  of  a  trustee. 

As  a  trustee  is  not  permitted  in  any  manner  to  injure  the  cestui  que  trust 
' — as  every  act  done  by  him  from  which  an  advantage  arises  enures  to  the 
benefit  of  the  estate,  and  cannot  result  to  his  own  profit,  and  as  he  stands 
altonrether  in  a  fiduciary  relation  to  the  trust-subject,  it  would  seem  to  fol- 
low that  a  purchase  of  it  by  him  would  not  be  deemed  consistent  with  his 
character  and  duties.  Accordingly  we  find  that  such  is  the  general  doc- 
trine of  the  court.  The  question  presents  itself  either  in  reference  to  pur- 
chases by  the  trustee  from  the  cestui  que  trust  of  his  beneficial  interest,  or 
in  reference  to  purchases  (by  trustees  and  others  standing  in  a  fiduciary 
character)  of  trust  property  sold  by  themselves  under  the  authority  conferred 
upon  them.     The  two  cases  must  be  considered  somewhat  distinctly. 

First.  As  to  the  case  of  a  purchase  by  a  trustee  from  his  cestui  que  trust 
of  the  trust-subject.  If  the  cestui  que  trust 'he  not  sui  juris,  as  if  he  be  an 
infant,  there  seems  to  be  no  mode  in  which  the  trustee  can  become  the  pur- 
chaser of  the  trust-subject,  so  as  to  be  protected  against  any  future  rescis- 
sion of  the  purchase,  except  by  filing  a  bill  in  equity,  and  shewing  that  he 
is  willing  to  give  more  than  any  one  else  would  give  ;  in  which  case  his 
purchase  would  be  permitted.  See  5  Vez.  jr.  678.  13  Vez.  601.  But 
where  the  cestui  que  trust  is  sul  juris,  that  is,  a  person  of  full  age,  unmar- 
ried, and  not  incapable  of  managing  his  affairs,  it  is  said  that  a  purchase 
from  him  by  his  trustee  is  not  of  course  void.  See  Sug.  431.  Such  trans- 
actions are  indeed  viewed  with  the  greatest  jealousy.  The  situation  of 
the  trustee  in  relation  to  the  estate  affords  him  opportunities  for  the  most 
accurate  knowledge,  not  only  of  its  obvious  or  apparent  value,  but  of  its 
intrinsic  or  hidden  advantages  ;  and,  as  the  confidential  relation  between 
himself  and  the  cestui  que  trust  leads  the  latter  to  place  imp'-'^it  reliance  on 
the  fulness  and  fairness  of  his  information  and  disclosures  on  these  topics, 
an  opportunity  would  be  afforded  for  fraud,  if  such  contracts  were  too 
readily  countenanced.  So  long  as  the  trustee  is  acting  for  the  cestui  que 
trust,  or  is  treating  with  third  persons  for  his  benefit,  so  long  may  he  be  ex- 
pected to  be  vigilant  and  tenacious  of  his  interests.  But  as  soon  as  he 
assumes  the  character  of  a  purchaser,  his  interest  becomes  in  conflict  with 
that  of  the  cestui  que  trust,  and  promjits  to  concealment  rather  than  to  full 
and  fair  disclosures.     Hence  it  is  on  all  hands  agreed  that  such  transactions 


CHAP.  21.]  TRUSTS.  459 

are  suspicious :  that  they  will  only  be  supported  where,  in  the  treaty,  the 
cestui  que  trust  appears  clearly  to  have  discharged  the  trustee  from  the  trust, 
and  to  have  considered  him  as  an  indifferent  person  :  and  even  then  there 
must  appear  to  be  a  distinct  and  clear  contract  after  full  disclosures,  without 
fraud  or  advantage  taken  of  information  acquired  in  the  fiduciary  character, 
and  fraudulently  withheld.  See  Sug.  431.  1  Mad.  91,  92,  93.  There 
are  indeed  not  wanting  able  jurists  who  incline  to  denounce  every  such 
transaction,  because  of  the  difficulty  of  detecting  secret  frauds  which  may 
be  practised  by  trustees  ;  and  who  therefore  think  that  "  however  innocent 
the  purchase,  it  is  poisonous  in  its  consequences.'"  2  John.  260,  264.  Yet 
it  would  seem  to  be  the  better  opinion  that  where,  at  the  time  of  the  pur- 
chase, the  trustee  had  shaken  off  entirely  the  confidential  character,  and 
every  thing  is  perfectly  fair,  the  transaction  may  be  sustained.  Sug.  431. 
2  John.  259. 

It  must  be  remarked,  however,  that  wherever  the  purchase  by  the  trustee 
is  made  in  the  name  of  another  person,  ihe  sale  will  be  set  aside  even  though 
the  cestui  que  trust  be  sui  juris,  since  that  very  circumstance  carries  fraud 
on  its  face.     Sugden,  431. 

Second.  Purchases  by  trustees  and  others  standing  in  a  fiduciary  cha- 
racter, of  property  sold  by  themselves  under  the  authority  conferred  upon 
them,  are  yet  more  decisively  reprobated  than  contracts  between  the  trustee 
and  cestui  que  trust.  For  it  may  be  laid  down  as  a  general  proposition, 
that  trustees,  [executors,]  agents,  commissioners  for  sales,  [sheriffs,]*  and 
auctioneers,  are  incapable  of  purchasing  at  sales  made  by  themselves  or 
under  their  authority  or  direction.  To  permit  persons  standing  in  the  situ- 
ation of  sellers  to  be  at  the  same  time  buyers,  is  to  invest  them  at  the  same 
moment  with  inconsistent,  contradictory,  and  conflicting  characters.  Emp- 
tor emit  quam  minimo  potest,  venditor  vendit  quam  maxima  potest.  No  man 
can  be  presumed  to  be  disinterested  when  so  situated  :  and  judging  from 
the  frailties  of  our  nature,  there  is  every  reason  to  fear  that,  in  the  conflict 
between  interest  and  duty,  the  interest  of  the  cestui  que  trust  will  generally 
yield  to  that  of  the  trustee.  And  although  this  may  often  not  prove  to  be 
the  case  where  men  of  honor  are  concerned,  yet  we  must  remember  that 
laws  are  made  rather  with  a  view  to  the  known  vices  of  our  nature,  than  to 
suit  the  character  of  the  virtuous  portiojis  of  society.  Hence  in  such  cases 
it  may,  I  think,  be  safely  affirmed,  that  the  question  of  the  validity  of  the 
purchase  depends  on  general  principles,  and  not  on  the  particular  circum- 
stances of  the  individual  case.  It  rests  upon  this,  that  the  purchase  is  not 
to  be  permitted  in  any  case,  however  honest  be  the  circumstances,  the  ge- 
neral interests  of  justice  requiring  the  practice  to  be  wholly  discountenanc- 
ed, as  no  court  is  equal  to  the  examination  and  ascertainment  of  the  real 
character  of  the  transaction  in  every  instance.  See  Sug.  422,  425.  1  Mad« 
91,  &c.  and  the  cases  there  cited.  Also  2  John.  257,  where  the  subject  is 
fully  examined,  and  the  abuses  to  which  the  practice  would  be  liable  are 
strongly  set  forth. 

The  rule  to  which  we  have  been  adverting  does  not  in  strictness,  howev- 
er, vacate  every  purchase  by  a  trustee  at  a  sale  made  by  himself;  for  if  the 
cestui  que  trust  be  sui  juris,  and  finds  the  sale  to  his  advantage,  he  may  in- 
sist upon  it;  and  so  if  he  be  an  infant,  and  it  is  found  to  be  for  his  benefit, 
it  will  not  be  set  aside  at  the  instance  of  the  purchaser.  13  Vez.  603.  6 
Vez.  631.  2  Mun.  Sale  vs.  Roy.  The  rule  therefore  is,  that  however  fair 
the  transaction,  it  must  be  subject  to  an  option  in  the  cestui  que  trust  if  he 
comes  in  a  reasonable  time  to  have  a  resale.  5  Vez.  678.  And  this  option 
is  not  taken  away  without  a  knowledge  of  the  facts  on  the  part  of  the  ces- 

*  As  to  a  sheriff's  purchases  at  his  own  sale  ihe  analogies  of  the  law  are  all  against  their  validity, 
though  we  have  no  express  decision  clssing  the  question.    4  Ran.  204. 


460  SPECIFIC  PERFORMANCE.  [  BOOK  3. 

tui  que  trust,  vvit-h  subsequent  acquiescence  or  confirmation.  lOVez.423. 
12  Vez.  355.  Sug.  435,  430.  And  it  follows  the  trust-subject  into  the 
hands  of  a  subsequent  purchaser  with  notice.     Sug.  434.  . 

But  where  the  cestui  que  trust  knows  of  the  purchase  by  the  trustee,  and 
has  received  full  information,  and  yet  acquiesces  for  a  long  time  in  the 
transaction,  equity  will  not  assist  him  to  set  aside  the  sale.  Sug.  4-35. 
Upon  this  principle  we  may  perhaps  reconcile  the  case  of  Anderson  and 
Starke  vs.  Fox,  (2  H.  &,  M.  245,)  with  the  British  adjudications.  Yet  the 
dicta  in  that  case,  and  in  the  case  4  H.  &  M,  430,  seem  to  incline  against 
the  universal  denial  of  the  validity  of  purchases  by  persons  in  fiduciary 
characters  of  the  trust-subject.  They  are  not,  however,  deemed  sufficient 
to  shake  the  well  settled  principles  I  have  above  quoted  from  the  decisions 
of  the  British  courts,  and  of  a  distinguished  jurist  in  a  sister  state.  In  5 
Mun.  180,  1  H.  &.  M.  519,  and  4  Mun.  451,  are  cases  in  which  such  pur- 
chases were  set  aside,  but  they  were  attended,  it  must  be  confessed,  with 
suspicious  circumstances,  and  do  not,  therefore,  furnish  any  decisive  autho- 
rity on  the  matter  in  question. 

In  all  cases,  therefore,  where  the  trustee  is  desirous  of  becoming  a  pur- 
chaser, and  is  willing  to  give  more  than  any  other  person  for  the  property, 
it  would  be  advisable,  in  the  present  state  of  the  adjudications,  that  he 
should  apply  by  bill  to  a  court  of  equity,  to  be  let  in  as  a  purchaser.  Upon 
such  application  the  court  will,  if  it  appears  proper,  direct  accordingly,  and 
a  purchase  made  by  him  under  a  sale  by  a  commissioner  or  officer  of  the 
court  will  be  unassailable.     See  5  Vezey,  681. 

Where  the  trustee  has  purchased  the  trust  estate  in  a  manner  not  autho- 
rized by  the  rules  of  the  court,  the  cestui  que  trust,  or  such  person  as  was 
entitled  to  the  property  before  the  sale,  may  either  insist  on  the  purchase 
being  avoided,  and  reclaim  the  estate  where  the  trustee  still  holds  the  es- 
tate ;  or  he  may  insist  on  a  resale  where  it  has  been  purchased  by  the  trus- 
tee on  a  sale  by  himself;  or  if  the  trustee  has  sold  the  estate  after  his  pur- 
chase to  any  other  third  person,  who  purchased  with  notice,  the  cestui  que 
trust  may  either  demand  the  advanced  price  such  third  person  may  have 
given,  or  may  demand  the  estate  itself.  And  it  seems  that  if  he  require  a 
resale,  the  trustee  is  not  thereby  absolved  as  of  course  ;  for  if  upon  the  re- 
sale, the  estate  sells  for  less  than  the  trustee  gave,  he  may  be  compelled  to 
keep  the  property  at  the  price  at  which  he  bought.  Sug.  433.  5  Vez.  707. 
Yet  strict  justice  is  in  all  cases  administered  to  him  :  for  if  the  cestui  que 
trust  requires  a  re-conveyance,  or  there  is  a  re-sale,  the  trustee  is  entitled  to 
have  the  price  he  gave  refunded,  together  with  all  sums  laid  out  for  the 
permanent  benefit  of  the  estate,  with  interest  from  the  time  they  were  dis- 
bursed ;  and  is  chargeable,  on  the  other  hand,  with  rentsand  profits  while 
he  had  possession. 

It  would  extend  this  sketch  beyond  the  limits  to  which  I  find  it  necessa- 
ry to  confine  myself,  were  I  to  insert  whatever  is  useful  or  interesting  to  be 
found  in  the  books  in  relation  to  trusts.  I  must  therefore  content  myself 
with  referring  the  student  to  the  elementary  treatises  of  Fonblanque,  Ma- 
doc,  Sugden,  and  Newland,  where  he  will  find  much  interesting  matter  to 
supply  the  deficiences  of  this  imperfect  essay. 

VIII.  OF  "SPECIFIC  PERFORMANCE." 

It  is  one  of  the  principles  of  equity  that  it  looks  upon  things 'agreed  to 
he  done,  as  actually  performed  ;  and  consequently  as  soon  as  a  contract  is 
made  for  the  sale  of  an  estate,  equity  considers  the  buyer  as  the  owner  of 
the  land,  and  the  seller  as  a  trustee  for  him  ;  and  on  the  other  hand,  it  con- 
*;dcrs  the  seller  as  the  owner  of  the  money,  and  the  buyer  as  a  trustee 


CHAP.  21.]  SPECIFIC  PERFORMANCE.  461 

for  him.  6  John.  398,  403.  1  Mad.  289.  Sug.  130.  The  courts  of  law, 
indeed,  until  a  conveyance  is  made  according  to  the  forms  required  to  pass 
the  legal  estate,  look  upon  the  seller  as  yet  continuing  the  owner,*  and  they 
pay  no  respect  to  the  contract,  except  to  give  to  one  party  damages  in  case 
the  other  refuses  to  complete  his  bargain.  But  as  neither  party  can  ever 
rescind  the  contract  without  the  assent  of  the  other,  (2  John.  534.  5  T. 
R.  402,)  a  court  of  equity  considers  the  change  of  property  so  entire  and 
absolute,  that  even  before  a  conveyance  is  made,  the  buyer  is  regarded  as 
the  owner  of  real  estate,  which  will,  as  we  have  seen,  descend  and  pass  to 
his  heirs  as  such,  if  he  should  die  before  he  gets  the  title :  whereas,  the 
seller  is,  in  the  eyes  of  equity,  so  completely  divested  of  the  realty  even  be- 
fore a  conveyance,  that  the  unpaid  purchase  money  will  pass  to  his  execu- 
tors instead  of  going  to  his  heirs.  The  consequences  correspond.  The 
death  of  neither  party  will  affect  the  contract,  except  that  where  the  vendor 
binds  himself  only  (and  not  his  heirs)  to  convey,  the  vendee  may  refuse  a 
conveyance  if  it  be  not  made  by  the  vendor  himself  in  his  lifetime  ;  6  Mun. 
170 ;  for  according  to  the  strict  import  of  the  terms  of  the  contract,  it  can- 
not now  be  fulfilled  on  the  part  of  the  vendor,  and  a  title  from  his  heirs  may 
not  be  as  beneficial  as  one  from  the  ancestor  himself;  for  the  heirs  would 
jiot  be  decreed  to  make  a  general  warranty.  4  Mun.  140.  From  the  same 
notion  of  a  complete  change  of  property,  any  intermediate  loss  or  gain 
which  may  happen  or  accrue  to  the  estate,  will  fall  on  or  enure  to  the  pur- 
chaser. So,  too,  the  interest  of  the  purchaser  is  devisable,  and  will  pass 
even  in  England  by  a  will  made  subsequent  to  the  contract,  though  prior  , 
to  the  conveyance  ;  and  it  is  in  like  manner  vendible  and  chargeable,  and 
when  it  descends  to  the  heir  is  considered  as  real  and  not  as  equithble  as- 
sets.    So,  too,  it  is  subject  in  Virginia  both  to  curtesy  and  to  dower. 

We  may  next  observe  that  the  lights  in  which  the  respective  interests  of 
the  buyer  and  seller  are  viewed  in  courts  of  law  and  equity,  do  not  differ 
more  than  the  remedies  afforded  in  these  different  tribunals.  Though  there 
was  formerly  a  real  action  given  by  the  common  law  to  compel  the  specific 
execution  of  a  contract  to  convey,  (see  -3  Black.  Commentaries,  page  157,) 
yet  the  only  remedy  now  known  in  a  court  of  law  for  the  breach  of  that  con- 
tract, is  an  action  for  damages.  It  is  obvious,  however,  that  herein  the  law 
is  grossly  defective,  and  equity  therefore  steps  in  and  enforces  the  perform- 
ance of  the  contract  specifically,  by  compelling  the  refractory  party  to  ful- 
fil his  engagement  according  to  its  terms.  1  Mad.  286.  Thus  if  the 
vendor  refuses  to  convey,  equity  will  decree  a  conveyance,  and  attach 
him  until  he  makes  it ;  or  if  he  is  out  of  its  jurisdiction,  will  put  the  ven- 
dee in  possession,  and  appoint  a  commissioner  to  convey  the  title,  whose 
deed  will  pass  the  legal  estate.  See  1  R.  C.  ch.  99,  §  34,  ch.  66,  §  41.  2 
Mun.  167. 

It  seems  to  be  considered  as  a  general  rule,  that  equity  will  not  decree  a 
specific  performance  where  the  plaintiff  would  not  be  entitled  to  recover 
damages  at  law.  1  Mad.  288.  This,  however,  is  obviously  not  true  iti  ex- 
tenso,  since  marriage  articles,  or  a  contract  between  husband  and  wife, 
which  will  not  be  recognized  at  all  in  a  court  of  law,  may  be  enforced  in 
equity,  and  conveyances  decreed  according  to  the  spirit  of  the  agreement. 

We  proceed,  after  these  preliminary  remarks,  to  inquire  in  what  cases  a 
court  of  equity  will  decree  the  specific  execution  of  agreements. 

First,  as  to  the  parties  to  the  agreement.  The  party  to  be  compelled 
must  of  course  be  bound  by  the  contract.  A  specific  performance  therefore 
obviously  cannot  be  decreed  against  an  infant  upon  any  contract  of  sale  he 

'  A  vendor  holding  only  an  equitable  title  may  now  defend  himself  at  law  on  that  title  if  it  be  sus- 
tained bv  plain  written  evidence  signed  by  the  vendor ;  and  a  judgment  for  him  in  ejectment  brought 
by  the  vendor,  operates  as  a  conveyance,"  and  ia  to  be  recorded  and  have  the  effect  of  a  recorded 
d£ed.    1830,  cii.  11,§66. 


162  SPECIFIC  PERFORMANCE.  [  BOOK  3. 

may  have  made;  for  such  is  not  binding  unless  ratified  and  confirmed  by 
him  at  full  age.  So  neither  can  there  be  such  a  decree  against  a  feme  co- 
vert, upon  any  contract  made  by  her  while  covert,  unless  it  were  executed 
with  the  solemnities  required  by  law  in  relation  to  deeds  o^ femes  covert ;  or 
unless  it  was  for  the  conveyance  of  her  separate  estate,  and  such  estate  be 
so  settled  as  to  authorize  her  to  sell  or  contract  respecting  it ;  ncr  will  an 
agreement  of  her  husband  bind  her.  And  though  it  has  been  said  if  a  hus- 
band agree  to  convey  his  wife's  estate,  he  will  be  compelled  to  procure  her 
conveyance,  and  will  be  committed  until  he  does,  (see  Sug.  151,)  yet  such 
doctrines  are  so  incompatible  with  the  freedom  from  restraint  in  conveyan- 
ces oi  femes  covert  which  our  law  contemplates,  that  I  am  persuaded  no 
such  principle  would  be  avowed  with  us.  See  I  Mad.  311.  The  purcha- 
ser would  doubtless  be  turned  around  to  his  action  for  damages. 

But  the  change  of  the  condition  of  the  party  will  not  abridge  the  purcha- 
ser's rights  if  the  vendor  was  capable  of  binding  himself  when  the  con- 
tract was  made.  Thus  if  a  feme  sole  contracts  and  then  marries,  she  may 
be  compelled  to  convey.  So  if  a  person  contracts  and  then  becomes  lunatic, 
the  rights  of  the  parties  continue  the  same,  for  the  act  of  God  will  not  im- 
pair them.  See  Sug.  153,  but  see  also  1  R.  C.  ch.  109,  §  21,  ch.  66,  §  41. 
So,  too,  if  a  man  seized  in  fee-simple  ox  pur  autre  vie,  contracts  for  the  sale 
of  his  estate,  and  dies  before  the  conveyance  is  executed,  although,  as  we 
have  said,  the  vendee  will  not  be  compelled  to  take  a  deed  from  the  heir, 
yet  if  he  chooses  to  do  so,  the  heir  at  law  will  be  decreed  to  perform  the 
agreement  in  specie,  though  the  vendor  covenanted  for  himself  only,  and 
«ot  for  his  heirs.  For  had  he  fulfilled  the  contract  as  he  ought  to  have  done 
in  his  lifetime,  the  vendee  would  have  had  his  title:  and  his  omitting  to  do 
•so  until  by  the  act  of  God  he  was  taken  off",  ought  not  to  divest  the  ven- 
dee's rights.  The  heir  is  therefore  bound  to  convey,  not  because  of  his  be-- 
ing  named,  but  because  of  his  holding  the  estate  which  another  man  is  en- 
titled to :  and  the  case  would  be  the  same  if  a  time  had  been  fixed  for  the 
conveyance,  and  he  died  before  it  arrived;  his  heir  would  be  decreed  to 
convey.  And  here  we  perceive  another  case  where  specific  performance  is 
decreed,  though  there  can  be  no  action  for  damages,  for  at  law  the  cove- 
nant was  not  broken;  because  its  performance  was  prevented  by  the  act  of 
God.  In  a  subsequent  passage  we  shall  see  what  covenants  the  purchaser 
may  require  from  the  heir  who  is  directed  to  convey. 

Secondly,  we  come  to  the  consideration  of  the  agreement  which  is  sought 
to  be  specifically  executed  ;   and  here 

1.  Of  the  subject-matter  of  the  contract.  In  general  a  bill  will  not  lie 
for  a  specific  performance  of  a  contract /or  chattels,  or  which  relate  to  mer- 
chandize ;  as  a  bargain  for  corn  or. stock.  For  the  remedy  of  specific  per- 
formance in  case  of  purchases  of  real  estate,  is  given  because  the  buyer 
■wants  the  thing  in  specie  ;  because  he  may  have  some  particular  reason  for 
desiring  the  estate  which  he  has  purchased,  rather  than  any  other  estate  ; 
for  he  may  always  be  presumed  to  have  made  his  purchase  from  a  particu- 
lar liking  to.  the  estate  so  purchased,  and  from  its  being  particularly  adapt- 
ed to  his  views  and  convenience.  But  such  a  motive  cannot  operate  gene- 
rally in  contracts  for  chattels ;  for  one  quantity  of  stock,  or  of  grain,  must 
be  equally  as  beneficial  as  another,  and  there  is,  therefore,  no  reason  for  a 
preference,  and  no  necessity  for  a  specific  performance,  since  the  damages 
recovered  at  law  may  be  laid  out  in  the  purchase  of  other  stock  or  grain. 
But  notwithstanding  this  general  distinction  between  real  estate  and  chat- 
tels in  reference  to  the  remedy  in  question,  there  are  cases  where  persons 
may  enforce  a  specific  performance  of  agreements  relating  to  personalty, 
though  the  court,  it  is  said,  will  weigh  with  great  nicety  cases  of  this  kind  ; 
nor  will  it  be  permitted  unless  the  demand  is  such  that  nothing  can  answer 


eiiAi'.  21.]  SPECIFie  PERFORMANCE.  463 

the  justice  of  the  case  but  a  performance  of  the  contract  in  specie.  As  if 
the  owner  of  an  ore  bank  contracts  to  deliver  to  an  iron-master  1000  tons 
of  ore  per  annum,  for  tlie  purpose  of  carrying  on  his  works,  and  there  was 
no  other  ore  in  his  vicinity,  it  would  seem  that  specific  performance  might 
be  decreed.     3  Atk.  384.     1  Mad.  296,  3-20. 

Among  these  exceptions  to  the  general  rule  that  specific  performance 
will  not  be  decreed  in  the  case  of  a  contract  for  a  chattel,  may  perhaps  be 
placed  the  case  of  a  contract  for  the  sale  of  slaves.  Certain  it  is  that  great 
consideration  is  allowed  to  the  partiality  which  a  master  is  supposed  to 
have  for  his  particular  slaves  :  so  that  upon  the  principles  of  a  bill  for  a 
specific  performance,  an  injunction  will  be  allowed  to  restrain  the  sale  of 
my  slave,  if  he  be  taken  for  the  debt  of  another,  though  a  court  of  equity 
will  refuse  its  aid  in  the  case  of  a  horse,  or  furniture,  or  such  like,  and 
would  leave  me  to  the  very  inadequate  remedy  of  an  action  for  damages. 
See  3  Rand.  25  and  170.  Upon  a  reference  to  the  last  of  these  cases  it 
will  be  perceived  that  there  is  no  little  difference  of  opinion  among  the 
judges  even  as  to  this  matter;  one  appearing  to  extend  the  principle  to  eve- 
ry case  of  a  slave,  and  another  confining  it  to  the  case  of  a  favorite  slave 
or  family  negro.*  If  the  former  opinion  prevail,  it  would  seem  that  a  bill 
might  well  lie  for  the  specific  performance  of  a  contract  for  the  sale  of 
slaves  generally.  If  the  latter,  perhaps  it  would  be  difficult  to  bring  any 
case  within  the  principle,  since  such  particular  attachment  is  not  likely  tO' 
exist  as  to  a  slave  which  I  have  never  yet  owned.  See  1  Mad.  189,  as  to 
bills  for  delivery  of  specific  chattels  of  peculiar  character  and  value. 

2.  Of  the  evidence  of  the  contract.  Having  shewn  that  the  remedy  of 
specific  performance  refers  itself  chiefly  to  contracts  for  real  estate,  it  fol- 
lows that  such  cases  must  generally  fall  within  the  influence  of  the  statute- 
of  frauds,  which  declares  void  all  contracts  for  land  which  are  not  reduced 
to  writing,  and  signed  by  the  party  sought  to  be  charged.  We  have  else- 
where seen,  however,  that  where  there  has  been  a  part  execution,  the  sta- 
tute cannot  be  pleaded  in  bar  to  the  performance,  and  we  have  touched  up- 
on the  doctrine  of  what  amounts  to  such  part  execution  as  will  take  a  case 
out  of  the  statute.  I  shall  not,  therefore,  recur  to  the  subject  here.  But  it 
must  be  remarked  that  this  part  execution  must  be  referrable  to  and  con- 
sistent only  with  the  title  set  up  ;  and  not  to  be  satisfied  by  any  other ;  1 
H.  &.M.  100.  1  Mad.  301;  and  that  although  in  a  given  case  the  efl^ect 
of  the  statute  is  removed  by  part  execution,  yet  this  does  not  dispense  with 
the  necessity  of  adequate  evidence  to  sustain  the  contract  set  up  by  the 
paintiff.  So  indispensible  is  this,  that  if  the  contract  set  forth  in  the  bill  be' 
not  proved,  the  plaintiff  cannot  have  a  decree,  although  the  answer  admits 
a  contract,  but  one  that  is  different  from  that  alleged  by  the  complainant. 

Though  parol  evidence  is  generally  inadmissible  on  the  part  of  the  plain- 
tiff, to  add  to  or  vary  a  written  contract,  it  is  admissible  on  the  part  of  the 
defendant  to  a  bill  for  specific  performance,  to  shew  mistake  or  omission, 
or  circumstances  dehors  the  writing,  making  it  inequitable  to  interpose.  1 
Mad.  321.  See  2  John.  598.  4  John.  148,  where  Chancellor  Kent  con- 
siders evidence  of  mistake  or  omission  admissible  on  the  part  of  the  plain- 
tiff as  well  as  of  the  defendant:  and  justly,  I  should  think. 

Since  the  loose  dicia  of  some  of  the  judges  in  the  case  of  Rowton  vs. 
Rowton,  (1  H.  &,  M.  91,)  many  cases  have  arisen  in  which  children  and 
sons  in  law  have  set  up  claims  to  conveyances  upon  pretended  contracts, 
sustained  by  evidence  of  loose  family  conversations,  and  of  thei^r  abandon- 
ment of  some  profitable  enterprise  in  consideration  of  a  promise  of  title  to 

'III  6  Ran.  191, published  since  the  above  was  written,  it  is  dccidod  that  equity  will  interfere  in  the 
case  of  slaves,  unless  it  appears  that  they  can  have  no  peculiar  value- in  the  eyes  of  tlie  applicant ;  as 
where  he  buys  to  sell  again, 


M. 


464  SPECIFIC  PERFORMANCE.  [book  3. 

lands.  On  this  subject  Chancellor  Kent  very  judiciously  observes  "  that  it 
would  be  injurious  to  that  freedom  of  intercourse,  and  to  the  operation  of 
those  kind  and  generous  affections  which  ought  to  be  cherished  in  the  cir- 
cle of  the  domestic  connexions,  to  deduce  a  trust"  [or  contract]  "from 
loose  and  general  expressions  in  a  confidential  correspondence "  [and 
much  more  in  loose  conversation]  "between  one  member  of  a  family  and 
another,  and  to  give  to  them  the  force  and  vigour  of  legal  obligations."  5 
Johnson,  13.     See  also  1  Leigh,  36. 

An  auctioneer  is  an  agent  for  the  purchaser  either  of  lands  or  goods,  and 
if  he  writes  the  purchaser's  name  as  the  highest  bidder  on  the  memoran- 
dum of  sale,  it  is  a  sufficient  signing.     4  John.  C.  C.  659.     2  Taun.  38. 

4  Taun.  209.  3  Vez.  &  Beam,  57.  3  Merivale,  62.  9  Vez.  252.  7 
East,  565,  569.  14  John.  484.  13  Vez.  456.  He  is  thus  the  agent  of 
both  parties. 

3.  Of  the  character  of  the  contract.  All  applications  to  the  court  to 
compel  a  specific  performance,  are  addressed  to  its  discretion  ;  but  it  is  not 
an  arbitrary  or  capricious  discretion,  but  a  sound  judicial  discretion  regulat- 
ed by  the  established  principles  of  the  court.  1  Mad.  286,  287.  6  John. 
Ill,  225.  Thus  to  justify  a  decree  for  a  specific  performance,  the  contract 
must  be  clearly  and  distinctly  ascertained,  or  the  court  cannot  decree ;  see 

5  Mun.  185;  though  in  one  case  (where  the  defendant  was  guilty  of  con- 
tumacy, and  the  court,  from  want  of  evidence  which  he  was  bound  to  dis- 
close, could  not  decree  a  specific  performance,)  a  sum  of  money  was  con- 
ditionally decreed  against  the  defendant  for  the  purpose  of  compelling  the 
production  of  the  evidence.  1  H.  &  M.  310.  And  indeed  if  the  agree- 
ment can  be  reduced  to  a  certainty,  it  will  be  enforced  ;  and  where  no  time 
is  fixed,  performance  in  reasonable  time  will  be  decreed.  1  Mad.  337.  So 
an  agreement  to  sell  at  a  fair  valuation  may  be  enforced.  5  Vez.  846.  But 
an  agreement  to  sell  at  such  price  as  A  and  B  should  fix,  without  authori- 
ty to  appoint  an  umpire,  cannot  be  enforced  if  they  disagree.  See  14  Vez. 
407.  1  Wash.  290,  326.  6  Mun.  212.  The  contract  must  moreover  be 
legal  as  well  as  certain  ; — it  must  not  conflict  with  principles  of  public  po- 
licy ;  it  must  be  fair  and  untainted  by  fraud,  surprise,  or  mistake;  and  the 
plaintiff  must  come  into  court  v.ith  clean  hands,  or  it  will  not  entertain  his 
bill.  It  must  also  be  mutual,  (1  Mad.  334,)  and  if  not  equal,  at  least  not 
grossly  unequal ;  for  though  equity  may  not,  for  inequality  of  price,  set 
aside  a  contract,  yet  the  same  inequality  might  induce  a  refusal  to  decree 
performance.  It  must,  however,  be  upon  valuable,  or  at  least  a  meritorious 
consideration,  such  as  payment  of  debts,  or  making  provision  for  a  wife 
or  child  :  for  equity  will  not  interfere  in  behalf  of  a  volunteer,  any  more 
than  it  will  set  aside  a  gift  because  it  is  merely  voluntary.  See  1  Mad.  326. 
It  must  also  be  reasonable  ;  for,  as  hss  just  been  said,  if  the  price  be  gross- 
ly inadequate,  equity  will  not  interfere.  1  Mad.  336.  6  John.  225.  2 
John.  23.  10  Vez.  292.  And  if  a  specific  performance  would  work  in- 
justice or  be  unreasonable,  the  party  will  be  left  to  his  action  for  damages. 
Thus  where,  after  a  considerable  lapse  of  time,  and  the  death  of  the  ven- 
dor, a  specific  performance  was  sought,  and  a  conveyance  demanded  from 
one  of  the  children  of  the  vendor  to  whom  the  estate  in  question  had  been 
devised  as  his  portion  of  his  father's  estate,  the  vendee  was  left  to  his  action 
for  damages,  which  would  bear  equally  on  all  the  heirs  and  devisees ; 
whereas,  a  decree  for  a  conveyance  would  have  disinherited  one  who  would 
then  probably  have  had  no  redress  against  the  others.  It  is,  indeed,  gene- 
rally an  essential,  that  the  ])arty  seeking  a  specific  performance,  should  not 
himself  have  been  backward  ;  that  he  should  not  have  held  off  until  cir- 
cumstances may  have  changed,  or  kept  himself  aloof  so  as  to  enforce  or 
abandon  the  contract,  as  events  might  prove  most  advantageous,     13  Vez. 


CHAP.  21.]  SPECIFIC  PERFORMANCE.  465 

225.  In  the  langunge  of  some  of  the  judges,  the  party  who  seeks  specific 
performance  must  shew  himself  "  ready,  desirous,  prompt,  and  eager."  See 
Sug.  279.  Certain  it  is,  that  if  there  has  been  gross  laches  in  the  plain- 
tiff— if  he  has  unreasonably  delayed  to  perform  his  part  of  the  agreement, 
or  if  he  has  broketi  it  (3  H.  &  M.  436,) — or  if  he  has  been  in  default 
and  the  defendant  would  sustain  serious  loss  thereby  in  case  of  specific  ex- 
ecution (4  Ran.  478,) — or  if  he  cannot  perform  it,  or  if  a  performance  when 
he  files  his  bill  would  not  put  the  other  party  into  the  situation  he  would 
have  been  in  had  there  been  a  strict  performance,  he  can  have  no  decree 
in  his  favor,  unless  his  failure  or  delay  has  proceeded  from  the  fault  or  as- 
sent of  the  defendant.  It  is  true  that  delay  in  the  payment  of  the  purchases 
money  is  not  usually  held  a  ground  for  refusing  a  decree  for  performance  ; 
because  compensation  can  be  made  in  the  shape  of  interest :  but  in  one  case 
it  has  been  refused  on  account  of  gross  delay  of  payment  after  repeated  so- 
licitation and  notice  by  the  vendor  of  an  intent  to  sell  to  another.  4  John. 
559.  In  general,  however,  time  of  payment  of  the  purchase  money  is  not 
considered  as  of  the  essence  of  the  contract.  But  where  time  is  of  the  es- 
sence of  the  contract,  then  there  must  be  a  strict  compliance,  or  the  party 
will  have  no  title  to  specific  performance.  See  Sug.  ch.  8,  §  I,  2.  5 
Cranch,  262.     13  Vez.  228. 

Connected  with  the  objection  of  a  failure  or  inability  to  perform  on  the 
part  of  the  plaintiff,  is  the  question  how  far  any  minute  variance  between 
the  property  as  sold,  and  that  which  can  be  conveyed,  shall  enable  the  de- 
fendant to  resist  the  specific  performance.  It  is,  indeed,  a  general  rule, 
that  the  plaintiff  must  perform  on  his  part,  and  that  the  defendant  must  get 
what  he  contracted  for: — but  a  substantial  performance  by  the  plaintiff,  and 
the  defendant's  getting  substantially  what  he  bargained  for,  will  suffice, 
notwithstanding  any  minute  variance  in  the  description.  10  Vez.  306.  G 
John.  C.  R.  38.  5  John.  174.  Thus  a  sale  of  a  tract  of  land  represented 
to  contain  150  acres,  will  be  enforced,  though  there  should  turn  out  to  be 
less.  So  if  there  be  a  sale  of  an  estate  for  years,  and  the  vendor's  title  is 
not  for  exactly  the  number  of  years  represented,  this  will  not  bar  the  en- 
forcement of  the  contract.  So  if  there  be  a  sale  of  several  lots,  and  the 
title  to  one  is  deficient;  yet  the  purchaser  will  be  compelled  to  take  the 
others  if  they  are  clearly  separate  and  distinct,  and  in  no  wise  complicated 
with  it.  Sug.  209.  See  2  Rand.  120.  See  also  2  Evans'  Pothier,  43. 
And  so  if  an  estate  be  sold,  and  the  seller's  title  to  part  of  it  be  deficient, 
yet  if  it  clearly  appear  that  the  purchaser  gels  what  was  his  principal  ob- 
ject, and  thus  has  a  substantial  performanee  ; — or  if  he  knew  the  defect 
when  he  purchased  and  that  it  would  take  much  time  to  remove  it ;  4  Ran. 
478; — or  if  it  appears  that  what  he  gets  is  independent  of  that  which  he 
does  not  get,  and  that  the  enjoyment  of  it  will  not  be  impaired  by  the  want 
of  the  residue,  a  specific  performance  will  be  decreed.  Sug.  211,  212. 
This,  however,  is  certainly  a  very  strong  exercise  of  the  powers  of  the 
court.     See  1  Mad.  311,  342,  -343. 

A  purchaser,  however,  cannot  be  compelled  to  take  a  defective  title:- — or 
to  take  an  estate  for  life,  where  he  contracts  for  a  fee  ;  or  to  take  an  undi- 
vided part,  where  he  contracts  for  the  entirety ;  or  where  he  contracts  for  a 
title,  he  cannot  be  compelled  to  take  an  equitable  title,  but  has  a  right  to 
insist  upon  a  clear  legal  title,  the  chain  of  which  is  unbroken  from  the  com- 
monwealth, or  which  has  been  accompanied  by  fifty  years'  uninterrupted 
possession,  and  therefore  is  good  against  all  the  world.  1  Mad.  341.  See 
5  John.  263.* 

*  As  to  specific  performance,  and  the  rescission  of  contracts  in  CHse  of  defect  of  title,  see  1  Leigh, 
133,125.  aRan.44.  4  Kan. 478.  4  Leigli,  Garnet  ijs,  Macon.  Sug.  2,8,  331, 345,  and  seq.  Harg. 
Co.Litt.3a4,  a.  n.l. 

VOL.  2—59 


ri' 


466  SPECIFIC  PERFORMANCE.  [book  3. 

On  the  other  hand,  however,  though  the  vendor  cannot  make  the  title  he 
contracts  for,  yet  he  may  be  compelled  to  convey  such  title  as  he  has,  and 
to  compensate  for  the  defect;  nor  does  it  lie  for  him  to  object  the  want  of 
complete  title.  If  indeed  he  has  no  title,  there  can  of  course  be  no  specific 
performance  and  the  plaintiff  must  sue  at  law  for  damages;  but  where  he 
has  a  title,  though  not  to  the  extent  contracted  for,  he  must  convey  it  if  re- 
quired ;  Sug.  155  ;  and  if  the  vendor  has  no  title  at  the  time  of  the  contract, 
but  afterwards  acquires  it,  the  vendee  may  compel  him  to  transfer  it.  1 
Pow.  on  Mortg.  2^5.  Sug.  523.  It  is  sufficient  that  the  vendor  can  make 
a  title  at  the  time  of  the  decree,  whether  he  is  sued  for  a  specific  perform- 
ance, or  is  seeking  to  enforce  it,  unless  in  the  latter  case,  where  the  time  of 
conveying  has  been  made  the  essence  of  the  contract.     See  I  Mad.  348. 

Where  a  specific  performance  cannot  be  decreed,  the  court  will  not  go 
on  to  ascertain  and  decree  damages,  but  will  send  the  party  to  law.  1 
Mad.  350.     5  John.  193.     Sed  qiuere. 

4.  Of  the  covenants  for  title  which  the  vendee  may  require.  If  a  man 
covenants  to  sell  a  fee  simple  estate  free  from  encumbrances,  and  says  no 
more,  this  covenant  alone  entitles  the  party  to  a  deed  with  general  warranty 
and  proper  covenants  for  the  defence  of  his  title.*  These  covenants  are 
covenants  of  seizin  of  such  estate  as  is  conveyed,  and  of  power  to  convey 
the  same;  and  that  the  estate  is  free  from  encumbrances;  all  which  are 
broken  the  instant  they  are  entered  into,  if  in  fact  the  vendor  has  not  the 
seizin  or  power  covenanted  for,  or  there  be  any  encumbrance  on  the  pro- 
perty.! The  vendee  is  also  entitled  to  covenants  for  further  assurance,  and 
for  quiet  enjoyment,  and  I  think  he  is,  with  us,  uniformly  considered  as  en- 
titled to  a  covenant  of  warranty,  not  only  against  the  vendor  and  his  heirs, 
and  those  claiming  under  him  or  them,  but  "  against  all  and  every  other 
person  or  persons  whatever."  In  England,  however,  the  rule  is,  that  if  the 
vendor  was  a  purchaser  himself  for  a  valuable  consideration,  he  covenants 
against  his  own  acts  only,  and  delivers  over,  or  covenants  to  deliver  over, 
his  title  deeds,  to  the  covenants  of  which  the  vendee  may  resort.  But  if 
he  does  not  claim  as  purchaser  for  valuable  consideration,  but  as  devisee, 
or  donee,  or  if  he  takes  by  descent,  or  if  he  retains  the  title  deeds,  he  must 
covenant  not  only  against  his  own  acts,  but  those  of  the  last  purchaser  for 
valuable  consideration,  and  all  claiming  under  him.  See  1  Mad.  338. 
Sug.  331,  &c.  In  bills  for  specific  performance  against  infant  lieirs,  how- 
ever, the  court  will  not  order  them  to  enter  into  personal  covenants,  though 
the  ancestor  covenanted  for  fiill  title.  They  are  required  only  to  release 
and  convey  the  title  of  which  their  ancestor  died  seized  ;  but  the  principal 
of  the  purchase  money  may  be  directed  to  be  retained  until  their  maturity 
as  a  security  for  the  title  till  then.  5  John.  261.  And  indeed  it  seems  in 
one  case  to  have  been  decided  that  the  heirs  of  a  vendor  who  covenanted 
"  to  make  good  and  lawful  right  in  fee-simple,"  ought  not  to  be  decreed  to 
make  a  conveyance  with  general,  but  only  wilh  special  warranty  :  4  Mun. 
144:  a  position  that  seems  not  reconcileable  with  justice,  if  it  be  extended 
to  the  case  of  heirs  receiving  assets  by  descent.  In  such  case  it  would  seem 
equitable  that  they  should  execute  such  a  deed  as  would  bind  them  to  war- 
rant against  all  persons  so  far  as  the  assets  descended  would  enable  them. 

If  a  purchaser  takes  a  defective  conveyance,  or  the  deed  runs  out  of  date, 
so  that  it  cannot  be  recorded,  the  vendor  or  his  heirs  will  be  decreed  to 
make  a  good  conveyance.     See  Sug.  523. 

*In  Riickcr  rs.  Lowtlier,  (court  of  appeals,  1835,)  this  was  nsscited  and  not  doiicil,  but  received 
as  llic  law  of  the  subject. 

t  Tills  rpndcTs  llip?o  covenants  most  important,  since  tliey  enable  tlie  vendee  to  gel  redress  forili- 
witli  if  he  finds  Iuf  ritle  der<!ciivc  in  those  rcgiinlH,  whereas  the  covenant  of  warranty  is  not  broken 
uniil  eviction  ;  though  it  Bcenin  a  icarraiiliai  cliardc  also  lios  before  actual  eviction  and  in  contem- 
plation of  loES.     h-ec  liook  U. 


CHAP.  21.]  INJUNCTIONS.  467 

Though,  as  we  have  said,  the  court  will  not  force  a  doubtful  title  upon 
a  purchaser,  yet  in  these  cases  it  sometimes  governs  itself  by  a  moral  cer- 
tainty. Thus  not  only  will  the  purchaser  be  compelled  to  take  the  title, 
though  the  chain  be  not  unbroken  from  the  patentee,  provided  the  vendor 
and  those  under  whom  he  claims,  have  had  fifty  years'  uninterrupted  pos- 
session ;  but  even  when  there  are  terms  or  encumbrances  to  be  got  in,  the 
contract  is  enforced  and  indemnity  secured  to  the  purchaser,  by  his  retain- 
ing an  adequate  part  of  the  purchase  money  until  the  encumbrance  is  re- 
moved :  as  where  there  is  an  outstanding  dower  right  in  a/e?ne  covert,  which 
she  will  not  relinquish.  Nor  is  it  an  objection  to  a  bill  for  specific  perfor- 
mance brought  against  the  vendee,  that  the  vendor  had  not  good  title  at 
the  time  of  the  sale  ;  for  if,  upon  bill  filed  and  a  reference  to  a  commission- 
er to  inquire  if  he  can  make  a  good  title,  it  appears  he  can  at  the  time  of 
the  report,  or  within  a  reasonable  time  after,  the  court  will  put  him  under 
terms  to  procure  it  speedily,  and  upon  his  doiug  so  will  give  him  a  de- 
cree. But  such  a  bill  by  a  vendor  will  not  be  entertained  after  a  great 
length  of  time,  he  not  having  had  a  good  title  at  the  time  of  the  sale.  I 
Mad.  349. 

If  the  purchaser  does  not  pay  the  purchase  money  at  the  day  fixed,  he  is 
chargeable  with  interest,  and  on  the  other  hand  is  entitled  to  the  profits. 
See  6  Ran.  465.  How  far  he  will  be  permitted  to  retain  the  purchase  mo- 
ney (while  he  has  possession)  on  the  ground  of  defect  of  the  title,  will  be 
considered  under  the  head  of  injunctions. 

The  student  will  consult,  on  this  subject,  among  others,  Sugden,  New- 
land,  Madoc,  and  Fonblanque. 

IX.  OF  "INJUNCTIONS."* 

An  injunction  is  a  prohibitory  writ  specially  granted  by  a  judge  of  a  court 
of  chancery,  either  in  term  time  or  vacation,  upon  the  exhibition  of  a  bill 
by  any  person,  setting  forth  his  case,  and  praying  the  interference  and  as- 
sistance of  the  court  in  restraining  his  adversary  from  doing  some  act  pre- 
judicial to  him,  and  against  equity  and  good  conscience.  It  is  granted  to 
prohibit  a  party  from  acting,  but  not  to  undo  what  he  has  done.  4  Ran. 
58.  This  is  done  only  on  the  final  decree.  If  the  bill  shews  sufiicient 
ground  for  the  exercise  of  the  powers  of  the  court,  and  is  supported  by  af- 
fidavit of  the  party  or  other  evidence,  (which  not  only  the  English  practice, 
but  our  own  statute  specially  requires,  1  R.  C.  ch.  66,  §  112,)  the  court  or 
judge,  if  the  application  is  made  in  vacation,  (Id.  §  108,  112,)  proceeds  to 
award  the  writ  by  endorsement  to  that  effect  on  the  bill,  upon  the  usual 
terms  of  the  court,  upon  which  the  bill  is  taken  to  the  clerk,  who  issues  a 
subpoena  against  the  defendant]]to  answer  the  bill,  and  endorses  the  injunc- 
tion or  prohibitory  order  on  the  back  of  it,  according  to  the  nature  of  the 
case.  If  the  order  requires  a  release  of  errors,  confession  of  judgment, 
and  bond  and  security  to  be  given  in  the  court  of  law,  he  also  endorses 
"  that  the  effect  of  the  injunction  is  to  be  suspended  "  until  the  requisitions 
be  complied  with.  The  subpoena  is  then  taken  to  the  clerk  of  the  court  of 
law,  and  when  the  release  and  bond  have  been  given,  he  certifies  the  fact 
on  the  subpoena,  and  then  the  injunction  has  its  effect,  and  not  till  then.t 
>  The  terms  on  which  injunctions  are  granted  depend  upon  the  character 
of  the  case.     If  the  injunction  be  to  a  judgment  against  the  complainant, 

*  See  llie  act  of  1830,  ch.  11,  §  39,  40,  41. 

t  A  count}'  court  cannot  inioin  the  judgment  of  a  superior  court  of  law.  4  Leigh,  Gholson  jjs.  Ken- 
dall &  Co. 

A  court  of  law  ouyht  not  to  permit  a  party  injoiaed  to  proceed  ft  law  in  contempt  of  (he  injunction. 
4  Leigh,  Dudley  vs.  Eppes. 


468  INJUNCTIONS.  [  BOOK  3. 

he  must  execute  a  release  of  all  errors  at  law,  and  (liter  into  bond  with 
good  security  to  the  plaintiff  at  law,  in  the  office  of  the  clerk  of  the  court 
of  law,  in  a  penalty  equal  to  twice  the  amount  of  the  judgment,  with  con- 
dition to  "  pay  all  money,  and  tobacco,  and  costs,  due  or  to  become  due  to 
the  plaintiff  in  the  action  at  law,  and  also  all  such  costs  and  damages  as 
shall  be  awarded  against  him  in  case  the  injunction  be  dissolved."  1  R. 
C.  ch.  66,  §  114.  If  the  injunction  be  prayed  for  to  a  proceeding  at  law 
Avhere  the  declaration  has  been  filed  but  no  judgment  has  yet  been  render- 
ed, the  order  of  the  judge  requires  a  confession  of  judgment,  that  the  de- 
fendant may  not  have  a  double  advantage  ;  for  regularly  an  injunction  which 
is  awarded  after  declaration  filed,  does  not  stay  the  trial,  but  only  execu- 
tion. 1  Leigh,  96.  If  before  suit  brought,  or  before  declaration,  it  stays 
every  thing.  10  Vez.  452.  17  Vez.  141.  19  Vez.  85,  377.  But  where, 
from  the  nature  of  the  case,  such  confession  cannot  be  required,  as  where 
the  demand  of  the  plaintiff  at  law  is  for  unascertained  damages,  the  order 
usually  permits  the  plaintiff  to  proceed  so  far  as  to  ascertain  them  ;  (unless 
the  defendant  makes  oath  that  he  cannot  safely  try  without  the  answer,  16 
Vez.  220.  18  Vez.  488  ;)  so  that  the  injunction  does  not  in  fact  operate 
until  the  judgment  is  rendered.  Where  the  defendant  at  law  has  permit- 
ted costs  to  accumulate  by  giving  a  forthcoming  bond  before  applying  for 
relief  in  equity,  it  is  also  proper  to  require  the  payment  of  these  costs  as  a 
condition  precedent  to  the  operation  of  the  injunction,  though  this  is  not 
always  attended  to. 

Where  the  injunction  is  to  enjoin  proceeding  to  sell  under  a  deed  of  trust, 
or  to  stay  waste,  and  such  like,  the  bond  and  security  required  is  usually 
only  for  such  sum  as  will  cover  all  probable  costs ;  though  this  is  entirely 
in  the  discretion  of  the  judge,  who  may  require  greater  security,  if  from  the 
nature  of  the  case  (e.  g.  the  possible  deficiency  of  the  trust-subject  to  sa- 
tisfy the  debt)  it  seems  necessary  to  prevent  injustice  or  ultimate  loss  to  the 
defendant. 

When  an  application  is  made  for  an  injunction,  it  is  not  necessary  that 
the  defendant  to  the  bill  should  have  notice  of  it ;  nor  indeed  if  he  knows 
of  the  application  has  he  any  right  to  be  lieard  upon  the  matter  in  that 
stage  of  the  proceeding,  which  is  fiom  its  very  nature  ex  parte.  But  in  nice 
and  difficult  cases,  it  is  said,  the  judge  may,  before  he  grants  an  injunction, 
require  notice  to  be  given  to  the  adverse  party  to  appear  and  contest  the 
propriety  of  it.  2  John.  375.  18  Vez,  217.  Such  is  not,  however,  the 
usual  practice  with  us  ;  except  that  in  some — perhaps  in  most  of  the  county 
courts — where  an  application  is  made  for  an  injunction,  both  parties  are 
heard  at  length,  and  the  court  decides  upon  argument; — a  practice  which 
generally  leads  to  great  irregularity,  as  the  counsel  rarely  confine  them- 
selves, in  such  discussions,  to  the  matter  contained  in  the  bill,  but  travel  out 
of  the  record  into  the  facts,  as  they  may  have  appeared  upon  some  previous 
trial  at  law. 

The  effect  of  an  injunction  in  restraining  the  defendant,  is  derived  from 
the  power  of  the  court  to  punish  him  for  his  contempt,  in  case  he  disobeys 
its  order.  See  1  Rand.  206,  This  is  done  by  an  attachment,  by  which 
his  body  is  taken  and  committed  to  prison,  to  await  the  decision  of  the 
court  upon  his  case.  Such  being  the  serious  consequences  of  a  disobedi- 
ence of  the  order,  justice  requires  that  the  guilt  of  the  party  should  be  es- 
tablished satisfactorily  ;  and  the  first  step  towards  doing  so,  is  to  prove  that 
he  had  notice  of  the  order.  Hence  the  jjlaintiff  who  desires  to  have  the 
benefit  of  his  injunction,  should  promptly  give  security,  and  have  the  sub- 
poBua,  with  its  proper  endorsements,  served  upon  the  defondwiit :  for,  until 
the  terms  of  the  order  are  complied  with,  there  is  no  injunction.  2  H.  &, 
M.  23.     Nor  is  it   a  sufficient  ground  for  an  attachment;  that  the  party 


CHAP.  21.]  INJUNCTIONS.  '  469 

against  whom  it  is  prayed  had  lieard  that  an  injunction  had  been  awarded. 
It  would  seem,  indeed,  that  service  with  a  copy,  and  shewing  the  original 
order  at  the  same  time,  is  necessary  in  a  court  of  law,  to  support  a  rule  for 
an  attachment.  3  T.  R.  351.  But  it  has  been  decided  that  if  the  plaintiff 
at  law  was  present  when  an  injunction  was  awarded,  and  proceeds  notwith- 
standing, he  may  be  punished  for  the  contempt.  See  14  Vez.  13G.  18 
Vez.  552.  See,  as  to  the  English  practice  in  relation  to  service  of  the 
subpcena,  2  Mad.  156,  181. 

Injunctions  are  sometimes  granted  during  the  pendency  of  a  suit,  but 
more  frequently,  with  us,  the  injunction  is  prayed  for  by  bill  offered  to  the 
chancellor  before  any  subpoena  has  issued.  It  can  in  general  only  be  ob- 
tained against  a  party  to  the  suit,  (4  John.  25.  7  Vez.  257,)  his  agents,  at- 
torneys, &c.  and  it  is  always  in  the  sound  discretion  of  the  chancellor  to  re- 
fuse or  allow  it.  If  he  refuses,  the  refbsal  is  endorsed  on  the  bill,  which 
may  then  be  presented  to  the  judges  of  the  court  of  appeals,  or  any  of  them, 
who  may  grant  or  refuse  it  at  discretion.  1  R.  C.  ch.  66,  §  44.  Where 
an  injunction  has  been  granted  and  dissolved,  it  may  not  only  be  reinstated, 
as  we  shall  hereafter  shew,  upon  new  evidence,  but  a  new  injunction  may 
be  granted  upon  new  facts  stated  in  a  supplemental  bill.  4  John.  35. 
See  2  Vez.  19.  Amb.  104.  1  Anstr.  189.  This  is  every  day's  practice 
with  us. 

The  cases  in  which  injunctions  may  be  granted  are  so  numerous  and  di- 
versified, and  depend  so  much  upon  the  endless  variety  of  human  transac- 
tions, that  we  must  rather  treat  here  of  general  principles,  than  attempt  an 
enumeration.     Thus  injunctions  may  be  granted,  wherever  such  an  inter- 
ference of  the  court  is  necessary  to  prevent  fraud,  or  injustice,  or  irrepara- 
ble mischief.     As  in  cases  of  waste,  a  mere  threat  to  commit  which  is  a  suf- 
ficient ground  upon   which  to  act;  but  here  we  must  distinguish  between 
those  cases  where  the  wrongdoer  is  only  a  tenant  for  life  or  for  years,  from 
those  where  he  claims  the  inheritance :  for  it  is  said  that  an  injunction  to 
stay  waste  will  not  be  allowed  where  the  defendant  is  in  possession  by  ad- 
verse title,  claiming  the  inheritance,  (6  Vez.  51,)  or  where  an  ejectment  is 
depending  for  the  title.     4  John.  21 .     And  so  if  the  title  be  doubtful  or  dis- 
puted, the  injunction  is  refused.     6  Vez.  69.     2  Dick.  599.     Yet  it  cannot 
be  denied  that  with  us,  at  least,  courts  of  equity  frequently  interfere  in  cases 
of  waste  even  during  the  pendency  of  an  ejectment,  though  the  law  has 
provided  the  writ  of^  estrepement.     1  R.  C.  ch.  1 17,  §  8.     1  H.  &  M.  18. 
See  also  I  Fonb.  29,  30.     Nor  does  it  seem  that  the  power  of  the  party  to 
bring  his  action  of  waste,  is  an  objection  to  the  remedy;   15  Vez.  138; 
notwithstanding  a  dictum  which  seems  to  the  contrary.     1  H.  &  M.  424. 
For  the  object  of  an  injunction  is  to  prevent  an  injury  for  which  the  party 
may  be  unable  to  get  adequate  compensation  in  damages:  and  the  owner 
of  an  estate,  which  is  wasted  and  ruined  by  a  person  in  possession,  would 
be  poorly  recompensed  by  any  damages  that  a  jury  might  allow.     Hence 
even  in  cases  of  trespass,  though  formerly  an  injunction  was  refused  unless 
it  grew  to  a  nuisance,  it  may  now  be  granted  where  the  bill  presents  a  case 
of  great   and  irremidable  mischief,  and  further  waste  is  apprehended.     6 
John.  46.     7  John.  315,  332.     1  John.  318,  611.     5  John.  111.     2  John. 
162.     6  John.  497.     I  Mad.  121.     Thus  the  corporation  of  New  York 
were  restrained  by  injunction  from  encroaching  on  the  plaintiff's  lot,  which 
he  had  uninterruptedly  enjoyed  for  twenty-five  years,  though  it  was  alleged 
he  had  encroached  on  the  street.     4  John.  55.     We  must,  however,  ob- 
serve that,  as  injunctions  are  confined  to  ihe  prohibition  of  an  act,  they  will 
not  lie  in  cases  of  waste  or  trespass,  unless  further  injury  is  apprehended. 
Yet  if  such  be  feared,  and  the  injunction  is  allowed,  the  court  will  inciden- 
tally take  jurisdiction  of  what  has  been  already  done,  and  after  ascertain- 


470  INJUNCTIONS.  [book  3. 

ing  the  amount  by  a  reference  to  a  commissioner,  will  decree  accordingly 
such  amount  to  the  plaintiff,  instead  of  sending  him  to  law  to  ascertain  it; 
and  this  upon  the  principle  of  preventing  multiplicity  of  actions.  1  Mad. 
123. 

With  respect  to  tenants  for  life  or  years,  unless  they  be  without  impeach- 
ment of  waste,  a  court  of  equity  always  readily  interposes  to  enjoin  the 
commission  of  it:  for  there  is  no  other  remedy  for  the  reversioner  except 
the  action  of  waste,  which  often  would  prove  but  a  poor  compensation  to 
Ihe  landlord  whose  estate  is  destroyed  by  an  unprincipled  tenant.  But 
where  the  tenant  holds  under  a  claim  without  impeachment  of  waste,  he  is 
at  liberty  to  cut  timber  generally,  provided  he  treats  it  in  a  husband-like 
manner.     See  1  Mad.  117. 

Where  trees  have  been  planted  for  ornament,  (or  where,  I  presume,  they 
form  part  of  the  ornament  of  the  curtilage,)  the  destruction  of  them  would 
be  enjoined,  though  the  rights  of  the  tenant  to  use  timber  from  the  wood- 
land would  not  be  restrained  merely  because  the  woods  are  ornamental,  and 
the  prospect  would  be  rendered  less  pleasing.     See  1  Mad.  118,  119. 

In  other  instances,  injunctions  are  granted  against  tenants  ;  as  against 
-their  breaking  up  meadow  contrary  to  covenant,  or  moving  from  the  farnt 
manure,  or  straw,  or  such  like  material  used  as  manure  ;  for  this  is  destruc- 
tive to  the  inheritance  :  and  generally,  when  a  tenant  is  about  to  commit  an 
act  which  is  permanently  injurious  to  the  estate,  and  which  he  has  no  right 
to  commit,  he  may  be  restrained. 

Injunctions  to  stay  waste  will  also  lie  for  the  mortgagee  against  the  mort- 
gagor, where  the  security  is  in  danger  of  being  impaired  thereby;  and  so 
by  a  mortgagor  against  a  mortgagee  in  possession,  unless  the  mortgagee 
cannot  otherwise  make  his  debt.  And  so  by  a  vendor  having  a  lien  for  his 
purchase  money.  2  H.  &  M.  25.  They  may  also  be  obtained  by  persons 
having  only  contingent  interests  in  the  inheritance  ;  and  so  even  by  a  ten- 
ant for  life  in  remainder,  who  may  be  injured  by  the  waste ;  but  in  such 
cases  the  owner  of  the  inheritance  must  be  made  a  party,  for  the  waste  may 
be  what  is  called  meliorating  waste,  which  may  be  to  his  benefit.  See  2 
Vez.  jr.  50.  One  tenant  in  common,  or  joint-tenant,  may  also  enjoin  waste 
committed  by  his  companion,  and  particularly  in  cases  of  insolvency.  Seo 
3  Brown,  G21.     2  John.  122.     7  Vez.  589.     16  Vez.  128. 

Where  timber  has  been  already  cut,  the  removal  of  it  will  not  be  prevent- 
ed, unless  in  cases  of  insolvency,  but  the  party  will  be  left  to  his  legal  re- 
medy.    5  John.  169. 

In  cases  of  nuisance,  also,  an  injunction  is  a  proper  remedy  where  the 
injury  is  likely  to  prove  great  and  irremediable  ;  4  H.  &.  M.  474.  6  Ran. 
245;  as  the  turning  of  ancient  water  courses,  or  the  illegal  stoppage,  from 
time  to  time,  of  water,  by  which  the  plaintiff's  mill  is  supplied.  See  1  Mad. 
129.  2  John.  164.  So  where  a  road  is  about  to  be  illegally  made  through 
a  garden  or  orchard  ;  or  a  street  opened  whereby  the  plaintiff's  house  will 
be  pulled  down.  Yet  it  seems  that  a  corporation  will  not  be  restrained 
from  digging  up  to  the  plaintiffs  very  line,  though  it  may  occasion  the  earth 
or  house  to  fall  in.  See  4  John.  55.  17  John.  Rep.  92.  Yet  see  1 
Comyn's  Digest,  315.  2  Roll.  565.  Injunctions  of  this  kind,  however^ 
are  only  granted  in  cases  of  private  nuisance,  or  of  public  nuisances  where 
the  plaintiff  shews  probable  injury  to  himself  individually,  from  their  exis- 
tence. 3  Rand.  63.  See  also  6  John.  430.  7  John.  315.  2  John.  272. 
Nor  will  an  injunction  be  granted  except  in  cases  of  nuisances,  so  consi- 
dered at  law.  Thus  it  will  not  be  granted  against  tolling  a  bell,  or  keeping 
a  noisy  pack  of  hounds,  unless  there  be  an  agreement  which  the  plaintiff 
would  have  a  right  to  enforce.     See  2  P.  Wms.  266. 


GHAP.  21.]  INJUNCTIONS.  471 

An  injunction  will  also  be  granted  to  restrain  the  defendant  from  ob- 
structing ancient  lights  :  but  it  does  not  lie  to  pull  down  any  thing,  though 
this  is  sometimes,  but  rarely,  done  on  a  decree.  1  Mad.  129.  2  John.  272. 
3  Atk.  725. 

Injunctions  are  also  granted  to  restrain  the  infringement  of  patents,  or 
the  sale  of  books  of  which  the  plaintiff  has  a  copy  right.  1  Mad.  123. 
Lord  Eldon  has  said,  indeed,  that  the  court  will  not  give  an  account  of  the 
unhallowed  profits  of  libellous  publications  ;  a  doctrine  which  has  been  strong- 
ly arraigned  in  an  article  of  the  Edinburgh  Review,  as  amounting  to  little 
else  than  a  censorship  of  the  press.  In  many  of  tbe  cases  of  injunctions 
to  the  sale  of  books,  the  complaint  is  of  the  defendant's  "  pirating,"  or, 
under  color  of  a  new  work,  republishing  the  old  work.  It  is  obviously  dif- 
ficult to  draw  the  precise  line  between  pirating,  on  the  one  hand,  and  fair 
quotation  on  the  other.  See  16  Vez.  269.  19  Vez.  424.  An  abstract  or 
fair  abridgement  of  a  work  seems  also  allowable  ;  2  Atk.  143 ;  though  a 
colorable  one  is  not.  5  Vez.  709.  And  in  a  late  case  where  the  author 
appeared  to  have  pirated  from  the  plaintiff,  aa  account  was  directed  to  set- 
tle the  relative  values  of  the  original  and  pirated  matter.  A  strange  pro- 
cedure, indeed,  which  has  not  yet  received  the  complete  sanction  of  the 
court,  as  chancellor  Eldon  reserved  his  definitive  opinion  on  the  question 
for  the  final  hearing.     I  have  seen  a  report  of  the  case  in  the  public  prints. 

The  negotiation  of  negotiable  securities  which  are  tainted  by  fraud  may 
be  restrained  :  for  otherwise  the  maker  would  be  liable  to  damage,  since 
the  endorsee  (if  they  be  negotiated  before  they  are  due)  will  not  be  affect- 
ed by  the  fraud.  1  Mad.  127.  It  is  otherwise  with  bonds,  even  in  Virgi- 
nia, since  (though  they  are  assignable)  the  assignee  takes  subject  to  the 
obligor's  equity.  They  are  not  negotiable  instruments,  in  the  legal  or  mer- 
cantile sense  of  the  term.  But  transfers  of  bank  stock — stocks  in  the  funds,. 
&c.  may  be  restrained  :  for  the  title  is  completely  changed  by  a  transfer  on 
the  books  of  the  bank.     See  6  Vez.  172. 

An  injunction  will  sometimes  be  granted  to  restrain  a  defendant  at  law 
from  putting  in  an  unrighteous  plea,  or  making  a  defence  which  in  equity 
and  conscience  he  ought  not  to  make.  As  where  an  injunction  was  grant- 
ed on  the  complainant's  releasing  errors  at  law,  which  release  the  attorney 
at  law  executed,  all  parties  supposing  it  sufficient ;  after  the  injunction  was 
dissolved,  the  defendant  at  law  obtained  a  writ  of  error  in  order  to  reverse 
the  judgment  at  law.  The  plaintiff  at  law,  now  defendant  in  error,  plead- 
ed in  nullo  est  erratum,  and  the  plaintiff  in  error  being  about  to  assign  er- 
rors, the  release  proving  to  be  insufficient,  (see  2  H.  &  M.  268,)  was  re- 
strained from  doing  so  by  injunction,  so  that  judgment  in  the  court  of  law 
went  against  him.  Wilson,  &c.  vs.  Lee,  Superior  Court  of  Chancery,  Win- 
chester. So  where  a  release  of  a  bond,  or  judgment,  or  of  errors  in  pro- 
ceeding, is  executed  by  mistake,  under  circumstances  entitling  the  party 
to  the  aid  of  equity  ;  that  aid  is  afforded  by  restraining  the  defendant  from 
pleading  or  using  the  release,  so  that  the  plaintiff  is  relieved  of  this  ob- 
struction to  his  proceeding.  So  if  on  granting  an  injunction  a  release  of 
errors  is  by  mistake  omitted  to  be  required  by  the  chancellor,  yet  the  com- 
plainant in  equity  will  be  restrained  from  prosecuting  his  writ  of  error,  or 
supersedeas,  or  certiorari,  at  law.     Gilmer,  15.3. 

Where  two  courts  have  concurrent  jurisdiction  of  the  same  thing,  an  in- 
junction will  sometimes  be  granted  by  that  which  first  had  possession  of  the 
suit,  to  prevent  proceeding  before  the  other  tribunal.  See  1  Mad.  106. 
Where  a  plaintiff  in  equity  is  proceeding  in  the  county  court  on  the  chan- 
cery side,  and  also  in  a  superior  court  of  chancery,  for  the  same  matter, 
the  ordinary  course  with  us  is  to  bring  up  the  case'  from  the  county  court 
by  certiorari. 


472  INJUNCTIONS.  [  BOOK  '3. 

The  most  usual  injunctions  with  us  are  those  which  are  granted  to  stay 
proceedings  at  law.  Such  injunctions  are  sometimes  used  to  stay  a  trial  ; 
as  where  the  plaintiff  in  equity  cannot  safely  defend  himself  at  law  without 
the  aid  of  the  defendant's  answer  upon  oath,  the  trial  may  be  suspended 
until  the  discovery.  16  Vez.  220.  18  Vez.  488.  Sometimes  it  is  prayed 
for  before  trial,  but  then  it  is  always  granted  on  condition  of  confessing 
judgment,  unless  the  demand  of  the  plaintiff  sounds  in  damages,  in  which 
case  the  judge  cannot  ascertain  for  what  sum  the  judgment  should  be  con- 
fessed. The  plaintiff  at  law  is  in  such  cases  permitted  to  proceed  to  judg- 
ment, unless  the  defendant  rccpiires  the  aid  of  a  compulsive  discovery  on 
oath,  as  I  have  just  said.  Most  usually  the  injunction  is  prayed  for  after 
judgment  to  stay  execution,  or  proceedings  under  an  execution  :  and  where 
in  such  case  the  money  has  been  made,  and  is  in  the  hands  of  the  sheriff, 
it  is  his  duty  immediately  to  refund  it  to  the  plaintiff  in  equity  ;  or  where 
the  body  of  the  complainant,  (1  Wash.  120,)  orchis  effects,  (2  Call,  213.) 
are  in  the  sherifi''s  hands,  he  must  release  them  immediately.  1  R.  C.  ch. 
134,  §  29.  See  6  Mun.  181.  The  security  in  the  injunction  is  in  such  ca- 
ses liable  to  the  plaintiff  at  law,  if  the  injunction  be  dissolved.  Injunction 
bills  of  this  description  offer  a  variety  of  grounds  for  equitable  interference. 
They  commonly  suggest  that  the  plaintiff  in  equity  is  not  able,  for  some 
reason  stated  in  the  bill,  to  make  his  defence  in  the  other  court,  though  he 
has  a  good  defence  in  equity  :  or  that  his  adversary  has  acquired  some 
unfair  advantage  of  him  at  law,  which  he  is  about  to  avail  himself  of,  rigo- 
rously and  unrighteously  ;  or  that,  from  the  character  of  the  law  jurisdic- 
tion, that  forum  has  not  the  power  to  do  him  justice  ;  or,  from  adhering  to 
its  rigorous  principles,  it  has  not  the  will.  In  short,  wherever  one  party  by 
fraud,  accident,  or  otherwise,  has  an  advantage  in  proceeding  in  a  court  of 
law,  which  must  necessarily  make  that  court  an  instrument  of  injustice, 
equity  will  interpose  by  restraining  the  party  whose  conscience  is  thus 
bound  from  using  his  advantages  unrighteously,  and  from  proceeding  at 
all,  if  that  be  necessary  for  justice  :  and  whenever  a  legal  right  will  be  re- 
lieved against  in  equity,  either  for  fraud,  accident,  mistake,  or  other  matter, 
an  attempt  to  enforce  that  right  at  law  will  lay  the  foundation  of  an  injunc- 
tion. 

It  must  be  observed  that  the  court  of  equity  does  not  act  upon  the  court 
of  law,  but  upon  the  party  only.  Gilmer,  158.  See  1  Mad.  109,  citing  1 
Atk.  516,  630.  IVez.sr.  284.  6  Rand.  505.  It  takes  no  step  disrespect- 
ful to  the  law  jurisdiction,  but  will  punish  the  party  for  his  contempt  if  he 
disobeys  its  injunction.      1  Rand.  206. 

The  student  will  perceive  from  what  has  been  said,  how  multifarious  are 
the  grounds  of  this  proceeding.  If  a  bond  be  tainted  by  usury,  gaming, 
fraud,  or  illegal  contracts  ;  or  if  the  consideration  on  which  it  was  found- 
ed has  failed,  or  was  originally  defective  through  mistake  or  accident ;  or 
if  the  defendant  had  discounts  of  which  ho  could  not  avail  himself  at  law, 
the  obligee  may  be  enjoined  from  proceeding  to  its  recovery.  And  so  if 
the  owner  of  the  equitable  title  to  land  has  been  ejected  at  law  by  the  hol- 
der of  the  legal  title,  or  if  a  judgment  be  rendered  by  mistake,  or  obtained 
by  fraud  or  accident,  such  as  will  entitle  the  plaintiff  to  equitable  aid,  that 
aid  will  be  afforded  by  injunction.  In  short,  we  shall  find  under  every 
head  of  chancery  jurisdiction,  ground  of  injunction  where  one  party  is 
about  to  oppress  or  injure  another  by  judicial  proceeding.  It  must  be  ob- 
served, however,  that  injunctions  against  liquidated  demands  will  not  be 
allowed  on  the  ground  that  the  defendant  is  entitled  to  an  action  against 
the  plaintifl'  for  unli(iuidatcd  damages.  3  Call,  502.  2  H.  &  M.  254.  Nor 
on  the  ground  of  an  unascertained  and  litigated  demand  which  the  defend- 


ciiAi'.  21.]  INJUNCTIONS.  478 

ant  has  purchased  up  for  the  purpose  of  an  offset  in  equity.     3  Call,  89. 
1  Mun.  529. 

Among  the  many  cases  of  injunction  whicli  the  ordinary  intercourse  be- 
tween man  and  man  thus  abundantly  furnishes,  there  are  some  which  re- 
quire to  be  considered  by  us  more  attentively  than  the  rest,  because  we  have 
designedly  postponed  the  examination  of  them  to  this  head.  Of  these  I 
shall  speak, 

1.  Of  injunctions  on  the  part  of  the  purchaser  of  land  to  restrain  the  re- 
covery of  the  purchase  money,  on  the  ground  of  a  defect  of  title.  The  ba- 
sis of  this  injunction  seems  to  be  a  combination  of  the  principle,  that  mo- 
ney ought  not  to  be  paid  where  the  consideration  has  failed,  with  the  appre- 
hension that  the  party  may  sustain  material  injury  if  he  makes  such  pay- 
ment. 

Cases  of  this  description  come  before  the  courts  under  different  aspects. 
Thus  if  I  have  merely  given  my  bond  for  the  purchase  money,  and  the  title 
fails,  I  pray  an  injunction  against  the  judgment  on  the  bond.  But  if  I  have 
purchased  lands  for  which  I  am  to  have  a  good  title,  and  have  given  amort- 
gage  or  deed  of  trust  on  the  same  land,  I  may  ask  the  interference  of  equi- 
ty to  suspend  or  restrain  the  sale  of  the  premises  until  all  doubts  of  the  title 
are  cleared  up,  and  it  will  be  granted.     1  Rand.  72. 

First.  In  the  last  of  these  cases,  (which  I  shall  consider  first,)  if  there  be 
really  a  doubt  or  cloud  hanging  over  the  title,  a  court  of  equity  readily  in- 
terferes to  suspend  the  sale,  notwithstanding  the  purchaser  has  possession; 
for  the  injury  he  would  sustain  from  a  sacrifice  by  sale  of  the  real  estate, 
while  serious  doubts  hang  over  the  title,  would  not  only  be  in  itself  a  pre- 
vailing motive  for  interference,  (Gilmer,  130,)  but  a  further  motive  would 
spring  out  of  the  fraud  in  the  vendor,  in  attempting  to  press  the  sale  under 
embarrassments  which  he  ought  himself  to  have  removed.  Hence  in  ca- 
ses of  this  description  equity  always  interposes.  1  Rand.  72,  Gray  rs.  Han- 
cock. 

Second.  But  where  a  judgment  has  been  rendered  against  me  for  the 
purchase  money,  and  I  seek  to  enjoin  it  on  the  ground  of  the  title  being  de- 
fective, the  case  is  not  so  free  from  difficulty  as  the  former;  so  that  in  the 
very  same  case  a  court  of  equity  might  enjoin  the  sale  under  a  deed  of  trust, 
but  refuse  to  enjoin  the  judgment. 

Thus  if  1  have  made  my  purchase  without  contracting  for  a  good  title  or 
protecting  covenants,  it  is  clear  that  I  can  have  no  title  to  suspend  the  pay- 
ment of  the  money,  because  the  vendor  is  not  responsible  for  the  title  to 
real  estate,  unless  he  has  contracted  for  such  responsibility.  2  John.  522, 
523.  13  Vez.  114.  5  John.  29,  79,  84.  Doug.  G54.  6T.  R.  606.  3 
Bos.  &  Pul.  162.  2  Caines,  183.  3  Call,  558.  Sug.  347.  To  this  rule  a 
ease  of  fraud  is  an  admitted  exception  ;  as  where  the  vendor  sells  knowing 
he  has  no  title,  he  is  liable  though  there  are  no  covenants.  3  John.  375. 
Coop.  Eq.  Rep.  308.     Sug.  350.     Co.  Litt.  384,  a.  note. 

If  I  have  purchased  and  received  my  title,  and  have  had  a  long  and  un- 
disturbed possession,  (e.  g.  12  years,)  it  is  not  competent  to  me  to  suspend 
the  payment  of  the  purchase  money  upon  the  pretext  or  mere  suggestion 
of  a  defect  of  title,  but  1  must  look  to  my  covenants.  2  John.  519.  1 
John.  213,  218.  4  H.  &,M.  390,  Yancey  vs.  Lewis.  In  the  last  case  here 
cited  it  was  said  that  an  actual  eviction  or  superior  title  in  a  third  person 
must  be  proved.  For  where  the  purchaser  has  taken  possession  and  is  in 
the  full  enjoyment  of  the  estate,  and  yet  asks  relief  in  equity  on  the  ground 
of  title,  the  onus  lies  on  him  to  prove  it  bad,  and  not  on  the  vendor  to  prove 
it  good.  5  Mun.  295.  He  must  place  himself  in  the  situation  of  the  per- 
son alleged  to  have  the  outstanding  title.  In  strictness  his  demands  against 
VOL.  2--60 


474  INJUNCTIONS.  [  BOOK  3. 

the  vendor  can  only  arise  from  eviction,  and  there  could  be  no  eviction  with- 
out the  proof  by  another  of  his  better  title.  Where,  therefore,  even  before 
eviction  equity  indulges  him,  it  ought  at  least  to  require  that  he  should  shew 
that,  which,  if  there  had  been  an  eviction,  must  have  been  shewn  by  a  third 
claimant. 

It  must  be  confessed,  however,  that  in  practice  our  courts  fall  far  short  of 
the  rigorous  principles  laid  down  in  some  of  the  cases  above  cited.  It  is 
admitted  by  a  distinguished  judge  that  relief  is  more  liberally  given  to  the 
purchaser  by  our  tribunals  than  by  those  of  Great  Britain.  Thus  it  has  been 
decided  that  if  a  suit  be  threatened  by  a  third  person  under  claim  of  title, 
that  threat  may  be  a  sufficient  ground  of  interference,  until  the  matter  is  in- 
quired into.  3  Rand.  44.  An  actual  suit  pending,  seems  by  Chancellor 
Kent  to  have  been  deemed  sufficient.     2  John.  547. 

If  I  purchase  land  for  which  I  am  to  pay  by  instalments,  and  there  be  a 
defect  of  title  to  part  of  the  land,  a  court  of  equity  will  only  enjoin  for  so 
much  as  will  be  sufficient  to  indemnify  the  vendee.  And  if  one  of  my  bonds 
be  assigned  by  the  vendor,  the  assignee  will  not  be  enjoined  in  his  recove- 
ry, if  the  bonds  not  assigned  are  sufficient  for  my  indemnification.  3Mun. 
275. 

In  those  cases,  however,  in  which  there  is  a  covenant  of  seizin  that  is 
broken,  or  where  the  party  never  has  been  put  into  possession  under  his 
contract,  relief  against  the  payment  of  the  purchase  is  freely  allowed  :  for 
as  on  the  one  hand  it  is  unjust  that  he  should  retain  both  the  possession  and 
the  purchase  money,  so  on  the  other  it  would  be  equally  unfair  that  the  sel- 
ler should  get  the  purchase  money  where  he  has  never  been  able  to  put  his 
vendee  in  possession.  So  where  before  a  conveyance  an  outstanding  en- 
cumbrance has  been  discovered,  the  purchaser  may  retain  so  much  of  the 
purchase  money  as  will  indemnify  him,  until  it  is  removed,  though  there  be 
no  covenants  against  encumbrances.  Sug.  345.  And  the  like  principle 
prevails,  I  conceive,  even  after  a  conveyance,  where  there  is  a  covenant 
against  encumbrances,  even  though  the  vendee  knew  of  their  existence  ;  3 
Mun.  68  ;  3  Ran.  44,  507  ;  or  even  where  there  is  no  such  covenant,  pro- 
vided the  vendee  did  not  know  of  them,  and  the  vendor  did  ;  for  the  con- 
cealment brings  the  case  within  the  principle  of  relief  against  fraud.  3 
John.  375. 

It  must  be  confessed  that  there  is  great  embarrassment  in  the  application 
of  the  principle  of  relieving  a  purchaser  on  the  ground  of  defect  of  title  in 
many  cases,  unless  there  has  been  an  actual  eviction,  or  there  is  an  action 
depending  at  law  to  try  the  title.  Where,  indeed,  the  defect  of  the  title 
appears  on  the  face  of  the  title  papers,  as  where  the  vendor  is  a  junior  pa- 
tentee, this  matter  jnay  be  shewn  by  the  purchaser  without  difficulty.  But 
where  the  dispute  arises  out  of  matter  dehors,  as  where  the  boundary  or 
identity  is  doubtful,  it  is  not  readily  perceived  what  course  is  to  be  pursued 
in  order  to  ascertain  who  has  the  better  title,  where  the  vendee  is  in  posses- 
sion, and  the  third  party  claims  the  legal  title,  and  has  not  brought  his  suit 
for  the  part  in  question.  It  seems  certain  that  he  cannot  be  brought  into  equi- 
ty to  contest  there  the  right  to  the  property,  (2  John.  522.  4  Ran.  256,)  both 
because  a  court  of  equity  is  not  the  proper  tribunal  for  such  an  inquiry,  and 
because,  as  his  title,  if  any,  is  a  legal  title,  he  can  demur  to  any  bill  which 
in  a  court  of  equity  calls  upon  him  to  dissever  or  try  that  title.  There  seems, 
then,  no  means  of  settling  definitively  whether  the  adversary  title  be  or  be 
not  good  ;  and  though  the  purchaser  may  fail  in  proving  it  bad,  yet  the  bet- 
ter information  of  the  claimant  may  at  any  future  time  prove  it  good.  In 
such  case,  therefore,  he  will  at  last  be  driven  to  look  to  his  covenants ;  for 
unless  in  the  case  supposed  he  does  succeed  in  proving  the  title  of  the  third 
person  to  be  the  better  title,  his  injunction  must  be  dissolved. 


CHAr.  21.  J  INJUNCTIONS.  475 

It  must  be  observed,  too,  in  conclusion  of  this  part  of  our  subject,  that 
the  insolvency  of  the  vendor  is  often  a  material  ingredient  in  bills  of  this 
description.  For  in  such  cases  the  strongest  motives  exist  for  sifting  the 
title  before  payment  of  the  purchase  money  is  enforced.  Nor  does  it  seem 
unreasonable  to  suppose  that  even  where  there  has  been  no  eviction,  or  ac- 
tion, or  even  a  threatening  of  suit,  and  though  the  defect  of  title  cannot 
clearly  be  made  out,  yet  if  doubts  hang  around  it,  and  insolvency  is  proved, 
a  court  of  equity  would  either  require  from  the  vendor  a  bond  of  indemni- 
ty, with  security,  or  if  that  could  not  be  given,  would  take  the  funds  into 
its  own  hands,  or  leave  them  in  the  purchaser's,  compelling  him,  however, 
to  pay  the  interest  in  lieu  of  the  profits,  of  which  he  is  in  the  receipt  if  he 
has  the  possession. 

Chancellor  Kent  says,  the  plaintiff  has  always  the  means  of  bringing  the 
legal  litle  to  the  test  by  an  action  on  the  covenant  of  seizin.  2  John.  525. 
To  this  I  cannot  accede.  For  though  a  disseizor  in  possession  conveys 
with  covenant  of  seizin,  that  covenant  is  not  broken  ;  for  every  disseizor 
has  seizin  ;  but  he  has  not  good  title. 

2.  The  next  class  of  cases  to  which  I  shall  advert,  are  injunctions  to 
judgments  at  law,  on  the  ground  of  surprise  on  the  trial. 

There  is  perhaps  no  subject  of  equitable  jurisdiction  on  which  the  deci- 
sions of  the  courts  have  been  more  variant  than  the  question  of  interference 
by  injunction  after  a  judgment  at  law,  upon  an  application  to  a  court  of 
equity  for  a  new  trial,  on  the  ground  of  mistake,  accident,  surprise,  or  the 
discovery  of  new  matter,  or  new  evidence.  Without  pretending  to  a  mi- 
nute examination  of  all  the  cases,  therefore,  I  shall  content  myself  with 
stating,  as  far  as  I  am  able,  the  principles  which  govern  the  practice  of  the 
courts,  leaving  to  the  student  to  examine  for  himself  our  various  adjudica- 
tions. 

First;  as  to  errors  committed  by  the  court  of  law  in  the  conduct  of  the 
cause,  it  is  a  general  rule  that  a  court  of  equity  does  not  sit  to  correct  errors 
of  the  court  of  law,  and  will  not  place  itself  in  an  appellate  character  over 
that  tribunal.  When,  therefore,  a  party  thinks  himself  aggrieved  by  the  de- 
cision of  the  court  of  law,  he  ought  to  appeal  to  a  superior  tribunal  instead 
of  seeking  a  relief  from  one  that  is  co-ordinate.  1  Call.  149,  150,  224, 
516.  2H.  &M.  139.  2  Mun.  1.  1  John.  320.  4  Ran.  553.  There 
certainly  can  be  no  general  principle  more  reasonable  than  this.  And  it  ap- 
plies not  only  to  errors  which  appear  in  the  pleadings,  or  which  arise  in  in- 
structions to  the  jury,  or  in  the  admission  of  improper  testimony,  but  to 
errors  of  the  court  of^  law  in  refusing  a  new  trial  upon  a  motion  of  the  par- 
ty grieved.  If  such  motion  be  made  and  overruled,  the  motion  should  be 
spread  on  the  record  by  bill  of  exceptions,  and  an  appeal  taken  ;  and  a 
court  of  equity  will  not  undertake  to  say  (upon  an  application  to  that  ju- 
risdictioji  founded  on  the  same  grounds  for  a  new  trial  which  were  presented 
to  the  court  of  law)  that  that  court  erred. 

Yet  in  some  cases  this  general  rule  has  been  departed  from  ;  as  in  Branch 
vs.  Burnley,  (1  Call,  147,)  where  relief  was  given  against  an  error  at  law, 
which  the  party  might  have  corrected  by  appeal ;  and  the  cases  in  2  Wash. 
.36,  41, — 3  Call,  44,  441,  appear  to  me  to  be  instances  of  the  same  kind. 
In  none  of  these  cases,  however,  is  the  general  rule  contested,  though  the 
circumstances  of  each  were  deemed  sufficient  to  take  it  out  of  its  ope- 
ration. 

Secondly  ;  it  is  generally  true,  that  where  the  party  fails  to  apply  to  the 
court  of  law  for  a  new  trial,  on  the  ground  of  excessive  damages,  mistake 
of  counsel  or  of  the  jury,  surprise  upon  the  trial,  or  misdirection  of  the 
court,  he  cannot  be  relieved  in  equity  ;  4  Ran.  19 ;  for  thus,  matter  pecu- 
liarly belonging  to  the  court  of  law,  might  be  transferred  from  that  jurisdic- 


476  liNJUiNCTIONS.  [book;3. 

tion  to  the  court  of  equity,  at  the  arbitrary  will  or  by  the  culpable  negli- 
gence of  the  party  in  the  cause.  1  Mad.  G4.  1  Sch.  &  Lef.  201.  4  H.  &, 
M.  180.  Yet  to  this  rule  there  may  be  an  exception  ;  as  in  the  case  of  Lee 
vs.  Foushee,  cited  1  Call,  553,  where  the  verdict  was  given  late  in  the  even- 
ing, and  a  motion  for  a  new  trial  was  made  the  next  morning,  which  could 
not  be  heard  because  the  members  of  the  court  were  changed  (it  being  a 
county  court.)  So  where  a  witness  was  sick  and  absent,  or  where  misbeha- 
vior in  the  jury  was  not  discovered  until  after  the  court  was  over.  See  1 
Wash.  79.  For  in  these  cases  accident  was  combined  with  other  ingre- 
dients, and  the  parties  were  relieved  because  by  such  accident  they  were 
deprived  of  their  legal  remedy. 

Thirdly;  it  is  a  general  rule  that  where  the  party  may  defend  himself  at 
law,  equity  will  not  interfere  ;  and  where  he  might  have  done  so,  but  has 
failed  to  do  it,  he  shall  not  have  relief  by  bill  in  equity,  unless  he  was  pre- 
vented by  fraud  or  accident,  or  the  act  of  the  opposite  party,  unmixed  with 
negligence  on  his  own  part.  See  G  John.  C.  R.  90.  2  John.  228,  553.  1 
John.  49,  91,  320,  432,  465.  6  Ran.  J,  125,  580.  Yet  if  it  be  doubtful 
whether  his  defence  would  avail  him  in  a  court  of  law,  equity  has  jurisdic- 
tion. 6  JMun.  313.  1  Vez.  jr.  417.  See,  also.  King  vs.  Baldwin,  in  17 
John.  Reports;  The  case  of  Branch  r.s.  Burnley,  (1  Call,)  rested  in  part  on 
this  doubt.     See  Judge  Pendleton's  opinion,  page  l57. 

Fourthly  ;  it  is  a  general  rule  that  mistakes  of  the  party  or  bis  counsel  in 
the  management  of  his  cause,  are  not  sufficient  ground  for  injunction  and 
new  trial.  1  Mad.  64.  4  Ran.  113,  498.  See  3  Mun.  112,  114,  Hay's 
argument.  Yet  in  4  Mun.  68,  the  mistaken  advice  of  counsel  appears  to 
have  been  one  ground  of  relief;  and  so  where  under  a  general  delusion  as 
to  the  law,  the  counsel  of  a  party  did  not  defend  him  as  it  afteruards  ap- 
peared he  might  have  done,  relief  was  given  on  the  ground  of  this  general 
delusion.  6  Mun.  557.  There  are,  however,  few  matters  for  interference 
more  delicate  than  this  ;  as  on  the  one  hand  it  is  hard  that  the  client  should 
suffer  by  the  error  of  his  counsel,  and  on  the  other,  it  would  open  a  wide 
door,  indeed,  if  wherever  a  cause  has  been  in  any  degree  mismanaged,  ."i 
court  of  equity  should  grant  a  new  trial. 

Fifthly  ;  a  court  of  equity  will  not  relieve  a  party  who  has  been  inatten- 
tive and  negligent  of  his  defence  at  law.  1  Mad.  64.  1  John.  49,  320,465. 
4  John.  566.  2  John.  228,  553.  1  Call,  224,  540.  2  H.  &  M.  575.  1  H. 
&M.342.  2H.&M.  14.  2Mun.31,244.  6Ran.  1,  125,  580.  4Ran.ll3, 
490.  See  Judge  Green's  opinion,  1  Rand.  413.  2  Leigh,  334.  If,  says 
he,  a  party  has  a  complete  defence  at  law,  and  does  not  lose  it  by  fraud, 
accident,  or  mistake,  a  court  of  equity  cannot  assist  him  ;  for  otherwise, 
every  case  would  be  tried  twice,  once  at  law  and. once  in  equity.  Yet  in 
some  cases  this  principle  appears  to  have  been  relaxed.  Thus  where  after 
the  trial  a  receipt  has  been  found,  it  is  grousul  of  relief  and  new  trial,  (3 
Call,  536.  1  Mad.  64.  4  Mun.  69.  2  P.  VVms.  426,)  though  at  one  time 
it  was  considered  otherwise.  See  1  John.  321.  2  John.  553.  7  T.  R. 
269.  So  relief  has  been  granted  on  the  allegation  that  the  party  was  absent 
from  the  commonwealth,  and  his  counsel  sick  wheii  the  cause  was  tried  : 
2  H.  &.  M.  10  :  but  costs  were  decreed  against  him  though  he  prevailed  ; 
which  seems,  indeed,  reasonable ;  though  the  general  principle  is,  that  if 
the  plaintiff"  in  injunction  succeeds,  he  shall  recover  costs.  2  Mun.  289. 
So  where  a  defendant  mistook  the  court  to  which  he  was  sued,  though  his 
doing  so  could  scarcely  have  occurred  except  from  culpable  inattention  ;  4 
H.  &  M.  427;  or  where  he  mistook  the  time  of  trial  ;  4  Mun.  110  ;  but  in 
this  last  case  there  were  other  circumstances  of  hardship.  So  where  exe- 
cutors suffered  or  confessed  judgments  amounting  to  an  acknowledgment 
of  assatB,  relief  has  in  several  cases  been  allowed,  on  the  ground  of  mistake, 


CHAP.  21.]  INJUNCTIONS.  477 

or  embarrassed  state  of  the  assets,  thoiigli  they  failed  to  defend  themselves 
at  law.  G  Mun.  .377.  1  Rand.  421,  438.  So,  too,  in.  gambling'  cases, 
whether  the  party  has  defended  himself  at  law  or  not,  equity  takes  juris- 
diction from  motives  of  policy;  3  Ran.  214.  1  Wash.  391 ;  and  in  cases 
of  trust  and  confidence,  from  its  j)eculiar  powers  over  llie  subject.  4  Mun. 
130.  See  also  1  Call,  147.  3  Call,  531.  4  Mun.  4G9,  as  to  relief  in  equi- 
ty against  judgments  at  law. 

Sixthly  ;  a  broader  principle  than  those  before  stated,  has  been  laid  down 
in  some  of  the  adjudicated  cases.  Thus  in  Fenwick  vs.  McMurdo,  it  is 
said  (2  Mun.  253,)  that  the  principle  settled  on  solemn  argument  and  due 
consideration  of  the  cases  of  Terrel  vs.  Dick,  1  Call,  54G  ;  Turpin  I's.  Tho- 
mas, 2  H.  &  M.  139;  Morris  &  Overton  vs.  Ross,  2  H.  £c  M.  408  ;  Syme 
vs.  Montague,  4  H.  &  M.  180  ;  and  Delima  vs.  Glassei's  administrators,  4 
H.  &,M.  3G9,  ought  not  now  to  be  disturbed  ;  which  is,  "  that  ichere  a  cause 
has  once  been  fully  heard  and  decided  in  a  court  of  common  law  having 
competent  jurisdiction  of  the  case,  a  court  of  equity  ought  not  to  interfere 
unless  fraud  or  surprise  be  suggested  and  proved,  or  some  material  adven- 
titious circumstance  has  arisen  which  could  not  liave  been  foreseen  or 
guarded  against."  See  1  John.  97.  If  this  be  the  rule,  it  must  be  confes- 
sed to  leave  most  of  the  principles  it  involves  entirely  undefined  and  in  the 
discretion  of  the  tribunal  which  is  to  apply  it.  The  converse  of  it,  howev- 
er, seems  to  have  been  adopted,  "  that  if  the  cause  has  not  been  fully  and 
fairly  tried  and  determined  at  law,  equity  will  give  relief;  4  Mun.  469.  6 
Mun.  291  ;  as  in  the  case  of  Ambler  vs.  Wyld,  (2  Wash.  41,)  where  it  is 
said  the  trial  was  not  fair  and  equal,  and  evidence  was  improperly  rejected  ; 
and  in  the  case  of  Picket  vs.  Morris,  (2  Wash.  255,)  where  the  party  was 
fraudulently  induced  to  waive  a  prosecution  of  his  appeal  ;  and  in  that  of 
Lee  vs.  Foushee,  where  the  rising  of  the  court  prevented  his  moving  for  a 
new  trial.  See  also  Armstrong  rs.  Hickman,  G  Mun.  287.  Ross  vs.  Pine, 
3  Call,  568.  Cochran  vs.  Street,  1  Wash.  79  ;  all  of  which  are  cited  by 
Judge  Carr,  (6  Mun.  291,)  as  instances  of  this  principle.  So,  too,  where 
there  was  fraud,  (4  H.  &  M.  453.  C  Mun.  418,  where  the  plaintiff  at  law 
assured  the  plaintiff  in  equity,  who  was  one  of  the  defendants  at  law,  that 
he  should  not  look  to  him  for  his  money;)  or  surprise,  (4  Mun.  58,  where 
an  executor  was  misled  by  his  counsel  in  the  management  of  his  cause  ;) 
or  where  some  adventitious  circumstance  had  arisen  which  could  not  have 
been  foreseen  or  guarded  against:  such  as  a  juror's  giving  evidence  to  his 
fellows  after  their  retirement,  or  a  witness  being  discovered  to  be  a  partner, 
of  which  the  plaintiff  had  no  information  in  time  to  move  for  a  new  trial  : 
see  4  H.  &  M.  479  :  or  the  party's  discovering  facts  after  the  trial  and  ris- 
ing of  the  court,  which  would  have  changed  the  character  of  the  decision. 
New  trials  are  granted  on  the  ground  of  surprise  with  more  readiness,  in 
pauper  suits  of  negroes  asserting  their  freedom,  than  in  other  cases.  And 
ihis  both  infavorem  libertatis,  and  because  they  labor  under  unusual  diffi- 
culties in  conducting  their  suits.     5  Mun.  95. 

Seventhly  ;  where  since  the  trial  the  party  has  discovered  new  matter,  of 
which  he  could  not  by  ordinary  diligence  have  availed  himself  on  the  trial 
at  law,  he  will  be  entitled  to  relief;  but  where,  by  the  exercise  of  ordinary 
diligence,  the  party  might  have  availed  himself  of  the  matter  relied  on,  he 
will  have  no  relief:  1  John.  465.  4  H.  &  M.  369 :  for  it  is  the  settled  doc- 
trine of  the  court  that  a  party  is  not  entitled  to  relief  after  verdict,  upon 
testimony  that  he  might  with  ordinary,  diligence  have  availed  himself  of  on 
the  trial  at  law.  6  John.  479.  See  also  1  Wash.  185.  4  H.  &  M.  368. 
6  Ran.  142.  Yet  where  a  witness  was  discovered  after  trial  to  be  a  part- 
ner of  the  plaintiff,  the  defendant  had  relief.  So  where  a  material  fact  was 
unknown  to  th«  defendant,  and  is  afterwards  discovered,  as  the  payment 


478  INJUNCTIONS.  [  BOOK  3. 

of  a  bond,  or  mortgage,  for  which  a  receipt  is  found  ;  or  the  bankruptcy 
and  discharge  of  the  maker  of  a  note  at  the  time  of  the  negotiation  of  it,  (6 
Mun.  '2S7  ;)  or  the  want  of  a  title  to  a  slave  sold  to  the  defendant,  of  which 
defect  he  is  not  informed  when  in  an  action  of  assumpsit  a  verdict  and 
judgment  are  rendered  against  him  for  the  price.  6  Mun.  692.  So  if  the 
defendant's  answer  admits  facts  that  would  have  produced  a  different  result, 
if  they  had  appeared  upon  the  trial  at  law,  relief  will  be  granted.  4  Ran. 
537.     In  all  these  cases  an  injunction  would  clearly  be  allowed. 

Whether  a  judgment  at  law  will  be  enjoined  on  the  ground  of  new  evi- 
dence discovered  since  the  trial,  which  merely  goes  to  establish  the  facts 
which  were  in  issue  between  the  parties,  and  which  the  applicant  for  an  in- 
junction failed  to  prove  to  the  satifaction  of  the  jury,  is  a  question  of  much 
delicacy.  See  G  Ran.  142.  The  line  is  very  difficult  to  be  defined  between 
the  cases  where  relief  should  be  granted,  and  those  in  wiiich  it  should  be 
refused.  To  say  that  where  an  executor  pleads  payment  to  a  bond,  but 
failing  to  sustain  his  plea,  a  judgment  goes  against  him,  and  he  afterwards 
finds  a  receipt  for  the  money,  he  shall  have  no  relief,  because  the  receipt  is 
only  new  evidence  in  support  of  a  fact  which  was  in  issue,  would  be  harsh 
and  unrighteous  ;  and  accordingly  in  such  cases  relief  will  be  granted,  as 
we  have  already  seen.  But  on  the  other  hand,  where  in  an  action  of  slan- 
der a  verdict  has  been  rendered  against  a  defendant,  to  allow  a  new  trial  on 
the  ground  that  he  has  discovered  new  evidence  to  establish  the  general  bad 
character  of  the  plaintiff,  would  lead  to  the  worst  consequences  ;  since  from 
the  nature  of  the  case  such  pretexts  might  always  be  raised  for  the  purpose 
of  obtaining  another  trial.  Accordingly  we  do  not  find  the  line  distinctly 
laid  down  by  the  courts.  Thus  a  receipt  found  after  the  judgment,  of  which 
the  party  had  before  no  knowledge,  is  admitted  to  suffice  as  a  ground  of 
injunction  and  new  trial ;  and  though  in  Delima  vs.  Glassel,  (4  H.  &  M. 
369,)  the  counsel  pressed  the  position  that  new  matter  only  (as  contradis- 
tinguished from  new  evidence)  would  do,  yet  the  language  of  the  court 
clearly  implies  that  if  there  be  new  evidence,  the  existence  of  which  the 
party  did  not  know  at  the  trial,  and  which  he  could  not  by  ordinary  dili- 
gence have  known  and  obtained  in  time,  he  would  be  entitled  to  relief.  4 
H.  &.  M.  369.  On  the  other  hand,  even  a  discovery  since  the  trial,  that  a 
witness  has  been  suborned,  or  was  perjured,  or  interested,  does  not  seem 
to  have  been  regarded  as  new  matter,  or  ground  for  new  trial.  1  John.  322, 
321,  citing  Prec.  in  Ch.  193.  It  has  been  also  decided  that  a  new  trial  is 
not  to  be  granted  to  give  the  party  an  opportunity  to  impeach  the  credit  of 
a  witness  :  5  John.  Rep.  248,  cited  Ibid  ;  and  in  the  case  above  cited 
Chancellor  Kent  seems  clearly  to  incline  to  the  opinion  that  a  new  trial  is 
not  to  be  granted  on  the  ground  of  new  evidence  to  what  was  tried  before, 
though  discovered  since  the  trial.     See  2  Atk.  -319. 

The  student  will  have  observed  from  the  cases  heretofore  cited,  that  the 
interference  of  a  court  of  equity  in  granting  a  new  trial,  arises  only  from 
the  inability  of  the  party  to  make  his  application  to  a  court  of  law  :  for  if  he 
has  made  it,  and  it  has  been  refused,  it  cannot  be  successfully  renewed  in 
equity  on  the  same  ground  ;  and  if  he  has  failed  to  make  it  when  he  might 
have  done  so,  he  is  entitled  to  no  relief.  Thus  it  is  obvious  the  court  of 
equity  substitutes  itself  for  the  court  of  law  ;  and  though  I  shall  not  pre- 
tend to  impugn  the  cases  which  have  been  cited,  I  may  venture  to  suggest 
that  in  all  such  applications  the  court  of  chancery  ought  to  adopt  the  prin- 
ciples and  rules  of  the  court  for  which  it  is  substituted.  If  so,  the  true 
criterion  in  all  questions  of  new  trial  on  the  ground  of  new  evidence,  is 
to  be  afforded  by  the  rules  adopted  by  courts  of  law  in  such  cases.  Of 
these  we  have  already  spoken.  The  student  will  also  consult  Tidd's  Prac. 
818.  Se Hon,  488, 489.  1  Wilson,  98.  2T.  11.  113.  2 Black.  Rep.  802, 
9o5.     1  Bos.  &  Pul.  427. 


ciiAi'.  21.]  INJUNCTIONS.  47J) 

Analagous  to  this  subject  is  the  question  whether  a  bill  to  review  and  re- 
verse a  decree  will  lie  upon  the  discovery  ol' new  evidence  to  the  facts  which 
were  in  issue  in  the  cause,  or  is  confined  to  the  discovery  0(7100  matter  only. 
The  rule  laid  down  by  Lord  Bacon  requires  "  that  the  bill  of  review  should 
be  either  for  supposed  error  appearing  in  the  decree  itself,  or  on  new  matter, 
which  must  arise  after  the  decree  or  upon  new  proof ,  which  could  not  have 
been  used  at  the  time  when  the  decree  passed."  3  Atk.  35.  And  Lord 
Bacon's  rules,  it  is  said  by  Lord  Hardwicke,  have  never  been  departed  from. 
Ibid.  From  this  rule,  then,  it  appears  that  new  matter  or  new  proofs,  are 
grounds  for  a  bill  of  review  where  they  have  come  to  the  party's  knowledge 
since  the  decree  ;  and  this  seems  to  be  admitted  bv  Lord  Hardwicke. 
Ibid.  Yet  in  the  case  of  Randolph  vs.  Randolph,  (1  H.  &  M.  161,)  the 
court  is  supposed  to  have  decided  that  additional  circumstances  merely 
confirming  facts  in  issue  in  the  original  cause,  do  not  furnish  sufficient 
grounds  for  bill  of  review.  See  also  Bolt's  argument,  4  H.  &  M.  373.  And 
in  the  elementary  works,  (Hinde,  56,  GO.  2  Mad.  409,)  and  a  late  adjudi- 
cation, (1  John.  322,  324,)  cases  are  cited  to  shew  that  new  evidence  to 
facts  before  in  issue,  is  neither  sufficient  ground  for  new  trial  or  bill  of  re- 
view. 3  P.  Wms.  371.  2  Free.  31.  The  case  of  Randolph  I's.  Randolph 
does  not,  I  think,  go  as  far  as  has  been  supposed,  for  the  bill  was  dismissed 
"  because  it  did  not  shew  any  new  matter,  or  disclose  or  refer  to  any  new 
evidence,  sufficient  to  ground  a  bill  of  review,  nor  does  the  evidence  taken 
prove  or  warrant  the  same  :  "  language  which  does  not  seem  irreconcileable 
with  Lord  Bacon's  rule.  Be  this  as  it  may,  there  seems  no  reason  to  doubt 
that  by  other  tribunals  both  grounds  are  recognised,  even  where  the  appli- 
cant has  failed,  because  he  could  bring  himself  within  neither.  Thus  in 
Young  vs.  Keighly,  Lord  Eldon  clearly  admits  the  ground  of  new  evidence 
in  relation  to  matter  before  in  issue,  saying,  "  as  far  as  I  can  ascertain  what 
the  court  permits  with  regard  to  bills  of  review  upon  facts  newly  discovered, 
the  decisions  appear  to  have  been  upon  new  evidence,  which  if  produced  in 
time  would  have  supported  the  original  case  ;  and  are  not  applicable  where 
the  original  cause  does  not  admit  the  introduction  of  the  evidence,  as  not 
being  put  in  issue  originally."  Nor  do  I  consider  him  as  denying  that  a 
bill  of  review  may  be  granted  to  let  the  party  into  an  entirely  new  matter 
of  defence,  where  that  was  unknown  to  him  before  the  decree.  See  IG 
Vez.  348.  In  2  John.  488,  and  3  John.  124,  I  understand  both  grounds  of 
the  bill  of  review  to  be  admitted.  See  on  this  subject,  1  H.  &  M.  13.  4 
H.  &  M.242.     2  Mun.  305.     3  Mun.  112.     6  Mun.  425. 

It  seems,  however,  to  be  correctly  ramarked,  that  a  bill  of  review  is  not 
to  be  admitted  merely  to  accumulate  testimony  to  a  litigated  fact  which  has 
been  already  attempted  to  be  supported.  3  John.  126,  127.  See  also  6 
Mun.  435.  In  3  P.  Wms.  371,  the  lord  chancellor  spoke  of  such  new  ev- 
idence as  a  receipt,  release,  &c.,  and  chancellor  Kent  seems  to  think  that 
the  instances  thus  given  furnish  the  general  character  of  such  admissible 
new  evidence.  3  John.  127.  From  this  cursory  review  I  think  it  is  ob- 
viously impossible  to  lay  down  any  distinct  rule.  Suffice  it  to  say,  that  by 
new  matter  we  are  to  understand,  I  presume,  a  new  and  distinct  fact  set  up  as 
a  defence  ;  and  by  new  evidence  is  meant  new  proof  to  matters  before  in  issue. 
In  both,  however,  the  same  principle  prevails,  that  the  new  matter  or  new 
evidence  was  not  only  unknown  to  the  party  at  or  before  the  decree,  but 
could  not  have  been  known  to  him  by  the  exercise  of  due  diligence.  The 
question  is  not  what  he  did  know — but  what  he  might  have  known. 
For  it  is  incumbent  on  the  court  to  take  care  that  the  same  subject  shall 
not  be  put  in  a  course  of  repeated  litigation  ;  to  prevent  which  the  neces- 
sity of  using  reasonably  active  diligence,  in  the  first  instance,  should  be  im- 
posed on  the  parties.     16  Vez.  350,  and  the  cases  cited  above  from  John- 


480  INJUNCTIONS.  [book  3. 

son's  Reports.     See  also  1  Mun.  112,  and  G  Mun.  425,  where  bills  of  re- 
view were  refused. 

In  ail  cases  of  aj)])lication  for  new  trial  on  the  gronnd  of  innjrnialion  ac- 
quired since  the  trial,  tiie  bill  must  he  attended  with  an  afiidavit  of  the  par- 
ty, and  where  in  the  nature  of  the  thing  it  is  practicable,  (see  4  Mun.  17G,) 
it  must  be  supported  at  the  hearing  by  disinterested  testimony.  See  1  Mun. 
293.  6  Ran.  134.  And  even  in  the  case  of  a  lost  receipt,  it  is  said  that 
the  plaiutilT  should  furnish  very  satisfactory  proof  of  efforts  made  before  the 
trial  to  recover  the  receij)t  or  to  supply  its  loss,  and  of  the  fact  of  its  dis- 
covery since.  He  ought  not  to  rest  upon  his  own  assertion,  without  proof 
of  loss,  search,  or  discovery.  2  John.  553.  6  Rand.  1-33.  See  as  to  what 
is  evidence  of  the  l.)ss  of  a  deed,  at  law,  so  as  to  let  in  secondary  evidence. 
Philips,  54,  in  note,  58,  in  note,  and  16  John.  193.  In  such  cases  the  gist 
of  the  action  is  the  discovery  of  the  new  evidence  and  its  materiality,  and 
of  course  it  ought  to  be  proved  ;  for  it  is  not  the  province  of  the  court  to 
enter  into  the  merits  of  the  dispute  at  law,  but  merely  to  examine  the  ground 
for  a  new  trial.  As  the  maieriality  of  the  evidence  depends,  however,  up- 
on the  character  of  the  defence,  it  should  always  be  stated  what  that  de- 
fence is.     3  John.  45. 

A  bill  of  injunction  and  new  trial  are  sometimes  sought  on  the  ground  of 
the  necessity  of  a  discovery,  by  appeal  to  the  conscience  of  the  defendant. 
It  is  said,  however,  to  be  too  late  to  do  this  after  a  verdict.  1  Vern.  176. 
1  John.  466.  3  John.  351.  6  Ran.  129,  per  Carr,  J.  The  majority  of  the 
court  did  not  concur  entirely  in  this  opinion.  Yet  it  often  happens  that  the 
inability  to  sustain  his  case  is  not  discovered  by  the  plaintiff  until  the  trial. 
Where  that  is  the  case,  doubtless  relief  would  be  afforded.  Where  the 
case  depends  on  discovery,  and  the  party  is  aware  of  it,  the  usual  course 
is  to  apply  for  an  injunction  before  the  trial,  in  the  case  of  the  defendant, 
or  to  sue  originally  in  equity,  in  the  case  of  the  plaintiff. 

Injunctions  and  new  trials,  on  the  ground  of  excessive  damages,  have 
sometimes  been  granted;  3  Call,  568.  2  H.  &  M.  263;  but  it  is  a  juris- 
diction that  ought  to  be  very  cautiously  exercised,  as  the  jury  who  tried  the 
cause,  and  the  court  who  presided  over  the  trial,  are  much  better  judges  of 
the  matter  than  a  chancellor  can  be. 

3.  Another  class  of  injunction  cases  to  which  it  is  proper  to  advert  par- 
ticularly, are  those  in  which  the  property  of  one  person  being  taken  on  an 
execution  against  another,  he  applies  to  a  court  of  equity  to  enjoin  the  sale 
until  the  title  is  tried.  Instances  of  this  kind  may  be  found  in  3  Mun.  99, 
559.  In  these  cases  relief  is  granted  by  analogy  to  the  doctrines  of  spe- 
cific performance.  For  if  equity  will  compel  a  specific  execution  of  a  con- 
tract where  the  party  wants  the  thing  in  specie,  it  ought,  a  fortiori,  to  pro- 
tect him  in  the  enjoyment  of  his  property  already  in  possession,  and  which 
may  have  a  peculiar  value  that  damages  cannot  compensate.  10  Vez.  139. 
1  Mad.  130.  Since  the  decision  of  the  above  cases,  however,  this  principle 
of  relief  having  been  not  a  little  abused,  the  doctrine  has  passe4  under  the 
revision  of  the  court,  and  it  has  been  decided,  1.  That  such  relief  will  not 
be  given  on  the  mere  ground  of  a  prior  incumbrance,  since  the  motive 
which  loads  a  court  of  equity  to  protect  the  owner  cannot  apply  to  a  mere 
incumbrancer.  3  Rand.  25.  2.  That  even  in  the  case  of  the  owner,  it 
must  appear,  either  from  the  peculiar  nature  of  the  property,  or  the  cir- 
cumstances of  the  case,  that  the  remedy  at  law  would  be  incomplete.  3 
Rand.  25,  170.  Thus  where  the  property  taken  has  peculiar  value  from 
its  being  a  family  rolic,  or  is  some  curious  or  ancient  piece  of  furniture, 
which  from  peculiar  circumstances  bears  a  fanciful  value,  (the  pretium  af- 
fectionis,)  which  cannot  be  compensated  in  damages:  3  Rand.  28:  as, 
for  instance,  the  key  of  the  Bastilo  held  by  some  of  General  Washington's 


CHAP.  21.]  INJUNCTIONS.  481 

heirs,  or  the  svvoid  or  watch  of  a  parent,  or  a  piece  of  family  plate  which 
has  descended  from  generation  to  generation.  On  like  principles,  old  fami- 
ly servants  would  clearly  be  protected.  As  to  slaves  generally,  however, 
three  of  the  judges  in  the  case  of  Allen  vs.  Freeland,  (3  Rand.  170,)  seem- 
ed to  differ.  Judge  Carr  seemed  to  think  that  it  must  appear  the  slaves  had 
some  peculiar  value;  Judge  Greene  thought  that  slaves  ought ^rma/acia 
to  be  protected,  as  of  peculiar  value  to  the  owner,  unless  the  presumption 
is  repelled  ;  (6  Rand.  506,  194,  accord.)  and  Judge  Brooke  is  of  opinion, 
that  in  cases  of  slaves  there  ought  to  be  greater  latitude  given  to  the  re- 
straining powers,  and  that  they  ought  in  all  cases  to  be  prohibited  from  sale 
under  the  execution  of  a  third  person,  unless  it  appears  that  they  are  to  be 
sold  at  any  rate. 

To  the  decisions  above  cited  we  are  compelled  to  bow  in  submission,  and 
doubtless  the  principle  of  them  is  in  the  general  correct.  Yet  if  injunc- 
tions are  granted  on  the  ground  of  irremediable  mischief  to  the  party,  the 
justice  of  refusing  it  is  not  perceived  in  many  cases  which  would  be  exclud- 
ed by  these  adjudications  ;  and  particularly  since  the  abolition  of  replevins, 
(except  in  cases  of  rent,)  which  remedy  was  given  by  the  common  law  to 
him  whose  property  was  illegally  taken  out  of  his  possession.  Thus  if  on 
an  execution  against  A,  the  only  horse  of  B,  a  poor  man,  is  taken  from  his 
plough,  it  is  a  mockery  of  justice  to  say  to  him,  "you  may  sue  for  dama- 
ges," when  a  lawsuit  may  be  beyond  his  means,  and  even  those  means  are 
diminished  by  the  wrong  :-^and  this  although  he  has  the  possession  (which 
it  is  the  principle  of  the  law  to  respect)  and  must  give  ample  security  for 
the  value  of  the  property  if  he  fails  to  prove  his  title  to  it.  / 

4.  Bills  quia  timet  may  be  arranged  under  this  head  of  injunction,  for  / 
they  generally  pray  a  restraining  order.  These  lie  for  the  preservation  of 
contested  property  pending  a  litigation  ;  1  Mad.  163  ;  or  for  the  reversion- 
er against  the  tenant  for  life  of  personal  property  ;  1  Mad.  182 ;  or  for  le- 
gatees or  others  interested  in  an  estate  against  an  executor,  (1  Mad.  179. 
2  John.  614,)  where  there  is  reason  to  apprehend  the  defendants  will  waste 
or  eloign  the  property  ; — ^and  where  danger  appears,  the  court  will  place 
the  property  in  the  hands  of  a  receiver,  unless  security  be  given.  These 
subjects  have  been  spoken  of  elsewhere. 

Another  class  of  cases  in  which  this  remedy  was  formerly  very  commoili', 
was  that  of  securities  who  feared  the  declining  circumstances  of  their  prin- 
cipal. For  as  soon  as  a  debt  is  due,  if  the  security  has  a  counter-bond,  he 
may  by  his  bill  compel  the  principal  to  pay  the  debt  though  he  is  not  sued. 
1  Vern.  190.  But  not  before  it  is  due.  4  John.  538.  A  bill  quia  timet  in 
such  case  lay  at  the  suit  of  the  security  against  the  creditor,  to  compel  him 
to  proceed  at  once  to  the  recovery  of  his  demand,  and  if  he  failed,  and  the 
principal  became  insolvent,  the  security  was  absolved.  But  our  law  has 
superseded  this  kind  of  bill,  by  affording  the  security  a  summary  remedy  by 
notice  to  the  creditor  in  writing,  calling  on  him  to  sue.  See  1  R.  C.  ch. 
116,  §  6,  7.  Such  notice,  however,  unless  in  writing,  is  not  compulsory  on 
the  creditor:  and  until  this  act  was  passed,  even  a  notice  in  writing  had 
not  the  effect  of  compelling  the  creditor  to  proceed.  The  bill  quia  timet 
was  the  only  remedy.  3  Call,  69.  2  John.  559.  Nor  does  this  law  o/?io- 
ticc  apply  before  the  debt  becomes  due,  or  extend  to  any  case  but  those  of 
parties  who  are  bound  as  security  "by  bond,  bill,  or  note,  for  the  payment 
of  money  or  tobacco:" — for  bonds  with  collateral  conditions,  as  also  "guar- 
dians', executors',  and  officers'  bonds,  are  expressly  excepted.  1  R.  C.  ch. 
116,  §  8.  Much  less,  therefore,  does  it  reach  the  ordinary  case  of  cove- 
nants. Nor  does  this  principle  of  relief  to  the  security  by  bill  quia  timet 
apply  until  the  debt  is  due  ;  nor  does  it  appear  to  extend  to  the  case  of  se- 
curities for  executors  or  administrators,  (though  relief  is  afforded  them  by 
VOL.  2 — 61 


482  INJUNCTIONS.  [book  3. 

1  R.  C.  ch.  104,  §  38,  &.C.)  nor  of  securities  for  the  due  execution  of  a 
trust  or  office,  which  from  its  nature  must  continue  some  time.  For  these 
cannot  absolve  themselves  from  their  securityships,  at  least  before  the  right 
of  action  has  accrued.  See  as  to  this,  what  is  said  4  John.  541.  2  Ran. 
838.     1  Carr&  Payne,  151. 

Intimately  connected  with  this  subject  is  the  question  how  far  a  security 
is  absolved  by  indulgence  given  to,  or  new  arrangements  made  with,  the 
debtor  by  the  creditor,  without  the  security's  assent.  The  leading  cases  on 
this  subject  are  collated  and  commented  on  by  Judge  Green,  (2  Ran.  335,) 
and  the  essential  principles  on  which  relief  in  such  cases  depends,  are  stat- 
ed by  him  with  his  accustomed  clearness  and  accuracy.  The  doctrine  rests 
upon  a  variety  of  obvious  considerations.  With  respect  to  indulgence  it 
has  been  justly  said,  that  "extension  of  time  would  change  the  liability  of 
the  security,  if  he  was  still  considered  bound.  It  would  make  him  guaran-^ 
tee  the  solvency  of  the  principal  up  to  a  future  and  a  distant  day.  A  pru- 
dent man  may  well  undertake  that  another  shall  pay  a  debt  by  a  short  day, 
who  might  yet  hesitate  as  to  a  distant  one  on  account  of  the  risk  of  insol- 
vency to  which  all  men  are  liable."  Gilmer,  .327.  And  though  thne  is  not 
always  of  the  essence  of  a  contract,  yet  in  reference  to  a  security  it  is  per- 
haps the  most  essential  ingredient.  A  change  of  the  time  is  therefore  an  es- 
sential change  of  the  contract.  But  a  change  of  the  contract,  whether  as 
to  time  or  as  to  any  other  matter,  must  of  necessity,  and  in  the  nature  of 
the  thing,  absolve  the  security,  if  he  is  no  party  to  the  new  arrangement  or 
contract.*  For  by  the  new  contract  or  arrangement  he  cannot  be  bound, 
as  he  is  no  party ;  nor  by  the  old,  because  it  is  superseded  and  abrogated 
by  the  new.  Moreover,  when  a  surety  signs  a  bond  to  the  creditor,  each 
party  is  immediately  vested  with  certain  rights:  the  creditor  with  the  right 
to  subject  the  security,  and  the  security  with  the  right  to  file  his  bill  quia 
timet,  requiring  the  creditor  to  commence  in  reasonable  time  his  suit  against 
the  principal,  and  proceed  with  due  diligence  to  recover  his  money.  And 
the  right  of  the  creditor  is  not  more  complete  and  perfect  than  this  right  of 
the  security.  It  rests  upon  the  most  ordinary  notions  of  justice  and  equi- 
ty, as  well  as  upon  express  statutory  provisions,  (sec  1  R.  C.  ch.  116,  §  6, 
which  substitutes  the  written  notice  for  the  bill  quia  timet,  though  the  latter 
remedy  is  not  taken  away.)  And  this  right  of  the  security  is  attended  by 
others  ;  that  is  to  say,  the  right  to  sue  the  principal  and  compel  him  to  pay 
the  money  as  soon  as  it  is  due,  (1  Vern.  190,)  or  to  pay  the  money  himself 
when  due,  and  demand  to  be  substituted  to  the  creditor,  and  permitted  to 
proceed  against  the  principal  himself.  If,  however,  the  creditor  has  put 
it  out  of  his  poxvar  to  do  this,  then  the  law,  instead  of  requiring  the  se- 
curity to  do  a  vain  thing,  (i.  e.  to  file  his  bill  quia  timet,  or  to  give  written 
notice  under  tlie  statute,  requiring  the  creditor  to  do  what  he  has  disabled 
himself  to  do,)  considers  him  as  ipso  facto  absolved  ;  for  the  creditor  has 
inflicted  an  injury  on  the  security  by  taking  away  his  rights,  and  therefore 
he  ought  to  run  the  risk  of  loss  himself: — he  has  undertaken  to  trust  the 
principal,  and  therefore  if  he  is  not  trust-worthy  he  should  suffer ; — he  has 
entered  into  a  new  contract  by  uliich  the  security  is  not  bound  because  he 
is  not  a  party,  and  has,  by  substituting  the  new  for  the  old,  abrogated  the 
latter  by  which  alone  the  security  was  bound  ; — he  has  made  arrangements 
with  the  debtor  without  the  consent  of  tlie  security,  who  had  a  deep  inte- 
rest in  all  such  arrangements,  and  a  riglit  to  be  consulted,  and  not  having 
been  consulted,  the  creditor  is  ])resumed  to  have  acted  without  a  view  to 
his  liability  :t  (sec  3  Barn.  &.  Cres.  005.     4  Barn.  &,  Cres.  50G :)  and  the 

*  If  the  security  assents  to  tlic  new  arianscinenl  lin  continues  bound.    4  llan.  101. 
t  So  il  he  reserves  his  roinodics  .againpt  the  surety,  for  the  law  will,  thereupon,  save  the  surety's 
remedy  against  the  principal.  13  Vez.  26.   Tor  out  of  the  reserve  of  right  to  proceed  against  the  sure- 


cxiAP.  21.]  INJUNCTIONS.  488 

security  is  discharged  whether  the  new  arrangement  be  beneficial  to  him  or 
not,  for  he  alone  is  the  proper  judge  of  that.  3  Merivale,  27'2.  See  2  Bro. 
C.  C.  579.  Rees  vs.  Barrington,  2  Vez.  jr.  540.  Skip  vs.  Huey,  3  Atk. 
91.  Hill  vs.  Bull,  Gilmer,  149.  Bennet  vs.  Maule,  Gilmer,  328.  Crough- 
ton  vs.  Duval,  3  Call,  69.  Ward  vs.  Johnson,  6  Mun.  6.  Also  3  Merivale, 
372.  1  Bos.  &  Pul.  422.  6  Vez.  809.  18  Vez.  20.  4  Taun.  456.  5 
Taun.  319,  614.  1  Marsh.  59.  5  T.  R.  277.  Bail  in  reference  to  this 
subject  have  the  rights  of  securities.  7  Taun.  53,  126.  6  Taun.  379.  10 
John.  Rep.  587.  Sed  vide  the  dictum  of  Chancellor  Kent,  (5  John.  315,) 
that  after  the  bail  ^xe  fixed  by  judgment  against  them,  they  lose  this  privi- 
lege of  securities  :-^a  position  utterly  irreconcileable,  I  think,  with  the 
whole  doctrine. 

In  these  cases,  however,  the  basis  of  the  security's  right  to  be  absolved, 
is  the  creditor's  having  deprived  him  by  this  act,  of  his  legal  or  equitable 
remedy  for  relieving  himself,  or  having  by  his  act  impaired  such  remedy. 
2  Rand.  334,  338.  Therefore,  "if  a  creditor  by"  [valid  and  binding] 
"  agreement,  or  any  other  act,  precludes  himself  from  proceeding  at  law 
against  the  principal  after  the  debt  is  due,  even  for  a  moment ;  or  if  the  agree- 
ment be  such  as  would  induce  a  court  of  equity  to  prohibit  the  creditor's 
proceeding  at  law,  the  surety  is  discharged  ;"  because  if  he  calls  upon  the 
creditor  to  proceed,  he  cannot  do  so,  or  if  the  party  pays  the  debt  he  can- 
not, by  being  substituted  to  the  creditor's  rights,  proceed  himself;  for  the 
creditor  has  taken  away  his  own  right  to  proceed.  "  But  if  the  act  or  agree- 
ment of  the  creditor  is  such  that  he  might,  notwithstanding,  proceed  against 
the  principal  if  required,  according  to  the  act  of  assembly;  or  might,  upon 
payment  of  the  debt  by  the  surety,  substitute  him  to  the  right  of  proceed- 
ing immediately  against  the  principal  ;  or  the  security  might,  notwithstand- 
ing such  act  or  agreement,  proceed  without  impediment  or  delay,  by  his 
bill  quia  timet ;  then  no  injury  has  been  done  to  the  surety,  and  there  is  no 
reason  for  absolving  liim."  Thus  the  hands  of  the  creditor  must  be  tied,  al- 
though only  for  a  moment.  4  Ran.  104.  "As  if  judgment  be  entered, 
with  stay  of  execution  entered  of  record,  this  prevents  the  plaintiff  from 
proceeding  immediately,"  since  he  cannot  revoke  the  stay,  it  being  entered 
of  record.  "  The  security  is  therefore  absolved.  So  an  agreement  to  give 
time,  founded  on  valuable  consideration,  such  as  the  giving  new  security, 
would  be  obligatory.  It  might  be  enforced  in  equity,  and  would  therefore 
discharge  the  security.  But  an  agreement,  without  consideration,  to  give 
time  to  the  principal,  would  be  a  nude  pact,  and  would  not  be  enforced  at 
law  or  in  equity,  and  the  creditor  might  proceed  notwithstanding  ;  so  that 
none  of  the  remedies  of  the  surety  would  be  impaired,  and  consequently 
he  would  not  be  discharged."  See  1  Leigh,  434.  So  an  agreement  to 
stay  execution  without  consideration,  or  for  the  consideration  of  legal  in- 
terest, (12  Wheat.  554,)  is  a  nude  pact,  and. does  not  tie  the  hands  of  the 
creditor  or  absolve  the  security;  1  Esp.  Rep.  430;  though,  as  we  have 
seen,  if  the  stay  be  entered  of  record  it  is  valid  at  law,  and  does  bind  the 
creditor,  and  of  course  absolve  the  security.  "  So  if  the  creditor  gives 
time  even  upon  valuable  consideration,  but  it  is  agreed  that  if  required  by 
the  security  he  may  proceed,  notwithstanding  the  agreement,  the  rights  and 
remedies  of  the  security  would  not  be  impaired,  nor  would  he  be  absolved. 
2  Rand.  334,  -335.     ISVez.  20.     See  also  9  Wheat.  720.     12  Wheat.  505. 

Bills  to  perpetuate  testimony,  though  they  do  not  partake  of  the  character 
of  injunctions,  yet  being  founded  on  the  party's  fear  that  he  will  lose  his 
testimony,  may  be  mentioned  here.     These  are  of  use  where  a  party  de- 

ty  is  implied  a  contract  on  the  part  of  flie  principal  that  if  the  creditor  goes  ngainst  the  suret)'.  the 
lutter  may  proceed  asiainst  the  principal.  See  also  6  Vez.  jr.  309,  citing  Burke's  case,  and  10  C.  L. 
R.  398.    riov.Sup.220. 


484  INJUNCTIONS.  [book  3. 

sires  to  perpetuate  the  testimony  of  witnesses  where  no  suit  is  depending, 
lest  in  some  subsequent  litigation  he  may,  by  death  or  otherwise,  lose  the 
benefit  of  such  testimony.  He  therefore  files  his  bill  to  perpetuate  his  tes- 
timony, which  is  taken  under  a  commission  from  the  court,  and  may  be 
read  in  any  future  litigation,  if  the  witness  dies  or  cannot  be  had.  It  should 
appear  that  the  facts  cannot  be  immediately  investigated  in  a  court  of  law^ 
or  there  will  be  no  ground  for  the  bill.  And  the  matter  to  which  the  testi- 
mony is  taken  should  be  particularly  stated.  After  bill  filed  supported  by 
affidavit,  and  before  answer,  the  depositions  may  be  taken  upon  notice  de 
bene  esse,  that  is  to  be  read  as  depositions  in  case  the  witnesses  die  or  can- 
not be  had  before  the  examination  in  chief.  After  the  answer  is  filed,  if  it 
shews  no  cause  against  the  perpetuation,  the  witnesses  are  examined  over 
again  in  chief.  The  only  order  made  in  the  cause,  is  an  order  directing 
the  testimony  to  be  perpetuated,  and  that  the  depositions  shall  avail  in  any 
future  litigation  of  the  matter,  in  case  the  witnesses  be  dead  or  not  to  be 
had,  as  if  they  were  examined  in  the  cause.  The  suit  being  brought  for 
the  plaintiff's  benefit,  he  pays  all  costs  ;  unless  the  defendant  also  takes  a 
commission  and  examines  witnesses,  which  he  may  do,  in  which  case,  as 
he  partakes  the  benefit,  he  must  pay  his  own  costs.  See  1  Mad.  152  to 
159.  In  Virginia,  the  act  of  assembly,  by  its  provisions  for  taking  the  tes- 
timony of  aged  and  infirm  witnesses,  and  those  who  are  about  to  depart 
the  country,  has  rendered  unnecessary  the  bill  to  perpetuate  where  a  suit  is 
depending.     1  R.  C.  ch.  131,  §  15. 

5.  To  the  head  of  injunctions  may  be  referred  bills  of  peace.  These  aro 
made  use  of  either  where  a  person  has  a  right  which  may  be  controverted 
by  a  variety  of  persons,  at  different  times  or  by  different  actions,  and  where 
the  parties  are  so  numerous  as  to  render  such  measure  proper  for  prevent- 
ing multiplicity  of  suits  ; — or  where  there  have  been  repeated  attempts  to 
litigate  the  same  question,  and  repeated  and  satisfactory  trials,  eventuating 
all  the  same  way.  2  John.  282.  In  the  former  case,  however,  the  bill  will 
not  lie  where  a  right  is  disputed  between  two  persons  only.  It  only  ap- 
plies where  there  are  various  persons  interested,  who  sue  altogether,  or 
some  in  the  name  of  the  rest,  whereupon  an  issue  is  directed  to  determine 
the  right :  and  ultimately  an  injunction  is  granted.  The  latter  case  is  where 
there  have  been  various  trials  in  ejectment,  all  of  which  have  terminated  in 
the  same  way ;  here  the  court  of  chancery  will  quiet  the  successful  party, 
since,  as  one  ejectment  is  no  bar  to  another  for  the  same  matter,  he  might 
be  perpetually  vexed.  See  1  Mad.  134,  141.  In  Lord  Bath  vs.  Sherwin, 
where  five  trials  all  determined  the  same  way,  the  successful  party  was  qui- 
eted by  bill  of  peace  and  injunction.  Two  trials,  however,  where  they  have 
been  full  and  fair,  and  have  terminated  the  same  way,  have  been  generally 
deemed  sufficient  to  determine  the  right.  See  2  Vez.  jr.  293.  1  P.  Wms. 
671.  1  Vern.  292.  But  where  A  sues  B  for  a  trespass  or  a  nuisance,  and 
the  same  being  repeated  or  continued  he  sues  again  and  again,  equity  will 
not  interfere  though  he  has  commenced  twenty  suits  and  continues  to  sue 
weekly.     2  John.°282.     See  7  John.  336. 

6.  Bills  of  interpleader.  These  lie  where  the  party  filing  them  claims 
no  right  to  the  money  or  property  in  disjjute,  but  apprehends,  from  a  claim 
being  set  up  by  two  or  more  in  separate  intetests,  that  he  may  be  injured 
by  paying  to  either.  The  plaintiff  must  bring  the  money  into  court,  to  be 
paid  into  the  receiver's  hands,  and  the  bill  must  be  accompanied  by  an  af- 
fidavit that  ho  colludes  with  neither  party.  An  injunction  is  then  granted 
(if,  as  is  usual,  it  be  asked,)  to  restrain  the  litigant  parties  from  suing  the 
plaintiff  at  law  or  in  equity.  A  mere  claim  is  ground  of  interpleader;  and 
this  whether  the  pariv  be  sued  bv  both,  or  onlv  one,  or  neither.  1  Mad. 
1-12.    G  John.  117. 


CHAP.  21.  ]  INJUNCTIONS.  485 

It  seems  that  upon  a  bill  of  interpleader  when  the  defendants  answer, 
the  court  may  direct  an  issue  at  law  between  them,  and  then  the  cause  is 
ended  as  to  the  plaintiff:  1  Mad.  148  :  or  it  may  proceed  with  the  cause  it- 
self, the  defendants  sustaining  their  claims  respectively,  by  such  evidence 
as  is  in  their  power,  without  a  bill  filed  by  one  against  the  other  ;  and  if 
one  in  this  way  establishes  his  title,  and  the  other  fails  to  do  so,  or  makes 
default,  (by  not  answering,  and  the  plaintiff's  bill  being  taken  for  confessed 
against  him,)  the  court  decrees  payment  to  the  former,  and  a  perpetual  in- 
junction to  the  latter.  6  John.  447,  citing  3  Brown,  C.  C.  297.  16  Vez. 
203.  This,  however,  is  an  awkward  proceeding,  as  there  is  no  issue  made 
up  between  them.  Depositions  taken  in  such  cases  ought  to  be  upon  no- 
tice by  the  defendant  taking  them,  not  only  to  the  plaintiff,  but  to  the  other 
defendant,  who  is  to  be  principally  affected  by  them. 

The  plaintiff,  if  he  acts  fairly  and  proceeds  properly,  is  entitled  to  his 
costs  out  of  the  fund,  and  if  there  be  none  in  court,  they  will  be  given 
against  the  party  who  occasioned  the  bill.  And  costs  will  also  be  given  as 
between  the  defendants  to  the  interpleading  bill,  in  favor  of  him  who  pre- 
vails.    6  John.  445.     6  Vez.  418.     9  Vez.  107. 

7.  Bills  for  the  preservation  of  contested  property ,  already  alluded  to  un- 
der the  head  of  bills  qxda  timet,  lie  where  pending  a  litigation  the  property 
is  in  danger  of  being  lost  or  injured.  See  1  Mad.  183.*  Our  statute  law, 
we  have  seen,  provides  for  cases  of  this  description  during  a  contest  about 
a  will:  but  equity  interferes  in  various  other  cases,  either  as  ancillary  to 
other  courts,  or  to  effect  the  ends  of  justice  in  a  cause  depending  before  it- 
self. This  is  sometimes  done  by  mere  injunction  restraining  the  party  from 
eloigning,  wasting,  or  enjoining  the  property  during  the  contest ;  or  where 
there  appears  sufficient  ground  a  receiver  is  appointed,  or  the  marshal  of 
the  court  is  directed  to  take  the  property  into  his  possession,  unless  the  de- 
fendant will  give  such  security  as  the  court  by  its  order  may  require,  to  have 
the  property  forthcoming,  or  to  account  for  its  amount.  This  order,  how- 
ever, is  never  granted  except  upon  the  plaintiffs  giving  bond  and  security 
in  an  adequate  penalty,  to  answer  (in  case  the  restraining  order  is  revoked) 
any  damages  it  might  occasion. 

S.  Similar  to  this  is  the  application  for  a  ne  exeat.  This  writ  issues  to 
restrain  the  defendant  from  going  out  of  the  state  until  he  gives  security  for 
the  plaintiff's  demand,  where  the  plaintiff  has  not  a  legal  remedy,  and  can- 
not therefore  hold  him  to  bail.  And  so,  though  he  has  sued  at  law  and  held 
him  to  bail,  yet  if  the  principal  and  bail  are  both  about  to  move  off,  and  the 
matter  in  dispute  is  an  account  of  which  equity  has  jurisdiction,  a  ne  exeat 
will  be  granted.     2  John.  169. 

The  ne  exeat  is  only  allowed  upon  a  certain,  equitable,  money  demand  ac- 
tually due,  14  Vez.  261.  6  Vez.  284.  1  Hoven.  352.  6  Ran.  188,  and 
is  allowed  at  the  instance  of  a  plaintiff  who  shows  title  to  sue.  It  will  not 
lie  on  a  legal  demand,  except  in  cases  of  concurrent  jurisdiction,  6  Ran. 
188,  (6  John.  138,)  for  bail  may  in  such  cases  be  required  as  of  right,  or 
upon  affidavit.  And  it  must  be  for  a  demand  for  which  the  defendant  is 
personally  liable.  And  therefore  in  a  ne  exeat  against  an  executor,  the  bill 
must  state  that  he  has  assets.  To  obtain  the  writ  the  plaintiff  must  swear 
positively  as  to  the  equitable  debt,  except  where  he  is  executor,  or  it  is  mat- 
ter of  account ;  and  then  he  must  state  the  amount  which  he  believes  to  be 
due.  See  2  Mad.  183.  7  John.  189.  He  must  shew  from  what  the  debt 
arises,  and  that  it  will  be  endangered  by  the  defendant's  going  abroad,  and 

*  As  to  appointment  of  a  receiver  in  cases  of  partnership,  see2Vez.&B.  299.  1  Jacobs  &  Walker, 
^aO.  In  Darnel  vs.  Latliatn,  and  in  Weaver  us.  Smllli,  the  court  of  Appeals  considered  the  exercise 
of  the  power  as  demanding  the  greatest  caution  and  circumspection.    The  cases  are  not  reported. 


486  INJUNCTIONS.  [  BOOK  3. 

he  should  charge  positively  that  the  defendant  is  going  out  of  the  state,  or 
that  he  has  said  so.  (i  Ran.  168.  Another  person's  saying  so,  unless  by 
affidavit,  will  not  do:  The  bill  must  be  sworn  to,  and  before  the  writ  issues 
the  party  praying  it  must  give  bond  and  security  in  the  sum  required  by  the 
judge,  with  condition  to  answer  costs  and  damages.  The  writ  is  directed 
to  the  sheriff,  commanding  him  to  make  the  defendant  find  the  security  re- 
quired that  he  will  not  leave  the  state,  and  on  his  failing  or  refusing  to  give 
it,  to  commit  him  to  prison.  The  writ  will  be  discharged  if  the  party  pays 
into  court  the  amount  of  the  demand,  or  if  at  any  time  he  gives  the  requi- 
site security,  or  can  shew  it  ought  not  to  have  been  granted. 

Writs  of  ne  exeat  sometimes  operate  harshly,  and  Lord  Eldon  said  he 
never  granted  one  without  apprehension.  1  Vez.  &Beam.  373.  They  are 
grantable  by  a  judge  of  the  court  of  chancery,  (1  R.  C.  ch.  G6,  §  38,)  or 
two  justices  of  the  peace,  in  vacation  as  well  as  in  term  time.  1  R.  C.  ch. 
71,  §68. 

As  attachments  for  legal  demands  are  now  allowable  even  before  a  debt 
has  become  due,  (1  R.  C.  ch.  123,  §  14,)  I  presume  a  ne  exeat  would  lie  in 
the  case  of  an  equitable  demand  not  yet  due.  We  find  the  doctrine  laid 
down  in  England,  that  it  only  lies  where  the  plaintiff  shews  a  title  to  sue. 
2  Mad.  183.° 

Thus  much  have  I  thought  it  necessary  to  lay  before  the  student  on  the 
subject  of  the  jurisdiction  in  cases  of  injunction.  It  may  not  be  improper 
to  add  a  few  remarks  respecting  their  dissolution. 

The  injunction  being  an  ex  parte  interlocutory  order  made  upon  the  filing 
of  a  bill  or  petition,  the  defendant  may,  on  putting  in  his  answer,  move  to 
discharge  or  rescind  it.  This  is  called  a  motion  to  dissolve,  or  for  dissolu- 
tion ;  and  it  may  be  made  at  the  term  next  after  the  answer  is  filed,  although 
it  was  filed  only  the  day  before  the  session  of  the  court.  Nor  can  the  plain- 
tiff complain,  for  as  soon  as  his  bill  is  filed  he  is  at  liberty,  by  the  practice 
of  the  court,  to  proceed  at  once  to  take  affidavits  in  support  of  his  bill. 
These  are  taken  upon  notice,  before  a  single  magistrate  or  one  of  the  com- 
missioners of  the  court,  and  without  the  necessity  of  a  commission.  The 
motion  to  dissolve  is  heard  upon  the  bill,  answer,  and  affidavits  and  argu* 
ments  of  counsel,  and  a  continuance  is  exceedingly  difficult  to  be  obtained, 
because  the  plaintiff  may  always,  upon  giving  notice,  move  to  reinstate  the 
injunction  even  after  the  term  is  over,  whereas  the  defendant  can  never 
move  to  dissolve  except  during  the  term.  1  H.  &  M.  8.  The  reason  of 
this  is,  that  the  act  of  assembly  provides  that  for  the  purposes  of  grant- 
inor  injunctions  the  court  shall  be  always  deemed  to  be  in  session  ;  1  R.C. 
ch.  66,  §  108 ;  and  the  reinstating  an  injunction  is  considered  in  the  nature 
of  an  original  application  for  an  injunction.     1  Rand.  414. 

It  is  a  rule  in  all  cases  in  equity,  that  where  the  a.ns\vcr  positivehj,  plain- 
ly, and  precisely  denies  the  matter  of  equity  stated  in  the  bill,  and  to  use 
the  language  of  the  books,  "  where  the  answer  is  responsive  to  the  bill,"  it 
is  to  be  taken  as  true,  unless  it  be  contradicted  by  two  witnesses,  or  by  one 
witness  and  corroborating  circumstances.  I  Mad.  338.  See  1  Call,  2*24. 
1  Wash.  389.  3  Call,  44.  1  H.  &  M.  537.  6  Wheat.  453,  468.  And 
yet  the  bill,  though  on  oath,  is  no  evidence  for  the  plaintiff.  The  reason  of 
the  rule  which  attributes  such  weight  to  the  answer  is,  that  the  plaintiff  by 
appealing  to  the  defendant's  conscience,  makes  him  a  witness  in  the  cause  ; 
and  by  his  very  appeal  to  his  conscience  attributes  to  him  credibility  when  he 
is  on  oath.  If,  therefore,  he  contradicts  his  testimony  by  only  one  witness, 
there  is  one  good  witness  against  another,  so  that  the  scales  of  justice  hang 
evenly ;  and  when  that  is  the  case  the  plaintiff  fails ;  for  he  never  can  suc- 
ceed unless  the  scale  preponderates  in  his  favor.     9  Cranch,  160.     But  if 


d«AP.  21.]  INJUNCTIONS.  487 

a  second  witness  or  corroborating  circumstances  turn  the  scale,  the  weight- 
of  the  answer  being  overbalanced,  the  plaintiff  shows  himself  entitled  to 
recover.     Id. 

The  weight  is  attributed,  however,  to  the  answer  of  the  defendant,  only 
where  he  denies  what  is  affirmatively  charged  in  the  bill.  For  where  the 
answer  asserts  a  right  affirmatively  in  opposition  to  the  plaintiff's  demand, 
the  defendant  is  as  much  bound  to  establish  it  by  indifferent  testimony,  as 
the  plaintiff  to  sustain  his  bill :  1  Wash.  225.  1  Mun.  373,  395.  2  John. 
C2,  89:  for  the  plaintiff  cannot  prove  a  negative,~r]nd  if  the  affirmation  be 
true,  the  defendant  inmj  prove  it.  Thus  where  distributees  filed  their  bill 
against  an  executor,  praying  for  a  distribution  of  the  decedent's  estate,  and 
the  executor  swore  his  testator  had  given  him  certain  property,  his  claim 
was  disallowed  for  want  of  proof:  for  otherwise  he  would  swear  himself 
into  a  title  to  part  of  his  testator's  estate.  1  Wash.  224.  As  to  the  weight 
of  the  answer  when  it  states  matter  in  accordance,  see  2  John.  C.  91. 

So,  too,  the  answer  of  a  defendant,  if  it  be  evasive,  will  not  prevail  where 
contradicted  even  by  one  witness.  5  Mun.  183.  Or  if  it  be  not  positive 
and  upon  the  knowledge  of  the  defendant,  the  evidence  of  one  positive 
and  credible  witness  will  overthrow  it,  though,  unless  contradicted,  the 
court  usually  believes  what  the  defendant  swears  he  believes,  if  the  matter 
be  responsive.  1  Mad.  325.  But  if  the  answer  be  a  positive  denial  of  a 
fact  charged  in  the  bill,  it  ought  not  to  be  outweighed  by  testimony  not 
equally  positive.     1  H.  &  M.  537. 

Where  the  answer  is  contradicted  in  any  one  or  more  important  particu- 
lars by  adequate  evidence,  (i.  e.  two  witnesses,  or  one  witness  and  corro- 
borating circumstances,)  it  is  deprived,  in  all  other  respects,  of  that  weight 
which  is  allowed  to  answers  by  the  rules  of  a  court  of  equity :  for  being 
falsified  in  one  thing,  no  confidence  can  be  placed  in  it  as  to  others  ;  ac- 
cording to  the  maxim  "falsum  in  uno  falsum  in  omnibus."  And  the  answer 
may  in  itself  contain  the  circumstances  giving  greater  credit  to  the  testimo- 
ny of  the  single  witness  ;  9  Vez.  275.-  2  John.  94  ;  or  destroying  its  own 
credibility;   as  where  it  is  plainly  contradictory  in  itself. 

Where  the  plaintiff  goes  into  equity  only  on  the  ground  that  he  cannot 
support  his  claim  without  a  discovery  obtained  from  the  defendant,  the  an- 
swer of  the  defendant  is  clearly  entitled  to  credit,  (1  Call,  280,)  and  would 
seem,  indeed,  to  be  conclusive;  for  if  the  plaintiff  should  disprove  it,  he 
'•'  would  prove  himself  out  of  court,"  that  is,  he  would  by  his  own  evidence 
falsify  his  own  allegation  which  served  as  the  ground  of  jurisdiction.  See 
1  Call,  -382.     See  also  what  is  said  arguendo,  6  Mun.  545. 

If  the  plaintiff  does  not  reply  to  the  answer,  but  the  cause  is  set  down 
for  hearing  upon  bill  and  answer  without  replication,  (even  by  consent,  5 
Ran.  577,)  the  answer  is  to  be  taken  in  all  things  as  true,  whether  the  mat- 
ter be  responsive  or  not,  and  whether  it  be  negative  or  affirmative,  3  Br. 
310.  1  Wash.  U)2.  5  Mun.  467,  483.  6  Mun.  142.  And  the  reason  is, 
not  only  that  the  plaintiff  thereby  intimates  his  admission  of  the  facts,  but 
that  he  takes  avv^ay  fron^  the  defendant  the  opportunity  of  proving  them  : 
for  until  replication  neither  party  can  take  out  commissions  to  examine  wit- 
nesses, (except  in  the  case  of  aged  and  infirm  witnesses,  who  may  be  ex- 
amined de  bene  esse,  though  even  these  must  be  examined  over  again  in 
chief,  if  they  can  be' procured  after  commissions  are  awarded.) 

If  the  defendant  sets  down  the  cause  upon  bill  and  answer  before  a  re- 
plication has  been  filed,  it  is  erroneous:  he  ought  to  give  a  rule  to  reply. 
1  R.  C.  cli.  i!tQ,  §  88.     In  such  case  the  cause  is  sent  back  to  the  rules. 

In  injunction  cases,  as  we  have  said,  the  defendant  may  file  his  answer 
the  day  before  the  commencement  of  the  term,  and  move  even  the  next  day 


488  I]NJUNCTIONS.  [book  3. 

for  a  dissolution.  Here  the  motion  may  come  on  without  replication ;  but 
the  answer  is  on  such  motion  to  be  taken  and  considered  as  if  there  was  a 
replication;  that  is,  the  responsive  matter  is  regarded  as  true  if  not  dispro- 
ved, and  the  affirmative  matter  disregarded  unless  proved.     See  4  Ran.  1. 

If  the  answer  neither  denies  nor  admits  the  allegations  of  the  bill,  the 
defendant  cannot  dissolve  ;  3  Ran.  220.  6  Ran.  194;  for  upon  a  question 
of  dissolution  they  are  to  be  taken  as  true  :  yet  when  the  cause  comes  to 
be  finally  heard,  the  plaintiff"  must  prove  them  or  he  will  fail.  6  Cranch, 
51.  See  2  John.  204.  4  Ran.  454.  If  the  defendant  admits  the  equity 
in  the  bill,  but  sets  up  new  matter  of  defence  on  which  he  relies,  the  in- 
junction will  be  continued  till  the  hearing.     4  John.  697. 

A  motion  to  dissolve  may  be  made  upon  the  defendant's  filing  a  demur- 
rer ;  and  even  without,  (it  would  seem,)  where  it  is  considered  the  injunc- 
tion was  improvidently  awarded.     4  John.  173. 

Where  the  charges  in  the  bill  implicate  all  the  defendants,  the  answer  of 
all  will  in  general  be  required  before  an  injunction  be  dissolved  ;  but  if  the 
gravamen  of  the  charge  rests  on  one  only,  and  he  has  fully  answered,  that 
is  usually  sufficient  to  justify  a  motion.  And  even  when  the  answer  of  all 
ought  to  be  had,  yet  if  the  plaintiff"  fails  to  take  the  proper  steps  for  procu- 
ring them,  and  to  use  due  diligence  to  expedite  his  cause,  his  injunction 
may  be  dissolved.  2  Johnv  148.  And  so,  I  conceive,  if  one  defendant 
claims  under  another,  (as  where  the  plaintiff"  at  law,  whose  judgment  is  en- 
joined, is  assignee  of  a  gambling  debt,)  the  injunction  will  not  be  dissolved 
until  the  answer  of  the  obligee  comes  in,  unless  the  plaintiff"  fails  to  use  due 
diligence  to  obtain  it.  And  yet  if  the  bill  be  taken  pro  confesso  against  the 
obligee,  or  there  be  an  order  of  publication  against  him,  that  is  no  evidence 
on  which  to  ground  a  decree  against  the  assignee.  2  John.  43.  For 
there  might  be  collusion.  Indeed  even  if  the  assignor  answers  and  con- 
fesses the  gambling,  it  is  made  a  question  whether  his  answer  is  evidence 
against  the  assignee.  3  Ran.  214.  Yet  see  what  is  said  3  Rand.  390,  and 
qucBre :  for  as  the  assignee  claims  under  the  assignor,  and-  the  assignor  is  a 
party  interested  because  liable  to  refund,  ought  there  to  be  any  question  as 
to  his  answer's  being  evidence  against  his  assignee?  His  mere  confessions, 
indeed,  after  assignment,  are  not,  it  would  seem.  See  3  Mun.  136.*  Yet 
in  the  present  state  of  uncertainty  on  this  point,  where  the  assignor  admits 
the  fact  charged,  it  would  be  advisable  for  the  plaintiff"  to  take  his  deposi- 
tion, and  then  his  statements  would  be  unquestionable  evidence. 

To  prevent  an  incorrect  inference  from  what  has  been  said  as  to  the  an- 
swer being  evidence  in  so  far  as  it  is  responsive,  and  not  evidence  in  so  far 
as  it  is  affirmative,  I  will  remark  that  this  principle  refers  itself  only  to  the 
trial  of  the  suit  in  equity  in  which  the  answer  is  filed.  For  if  in  another 
matter  (e.  g.  in  an  action  at  law)  the  answer  of  a  party  in  a  suit  in  equity 
is  introduced  as  evidence,  the  whole,  (both  negative  and  affirmative,)  so  far 
as  it  relates  to  the  matter  in  issue,  must  be  read  in  evidence.  2  John.  90, 
91.  For  evidence  must  not  be  garbled,  but  all  that  the  party  says,  at  the 
same  time,  must  be  admitted  if  any  thing  is  introduced.  But  observe,  that 
though  no  part  can  be  excluded  if  any  thing  is  read,  the  jury  or  court  are 
not  bound  to  give  equal  credit  to  the  whole.  Id.  Douglas,  788.  2  Bosr 
&  Pul.  548. 

The  motion  to  dissolve  never  determines  the  cause  finally,  except  that 
the  suit  will  stand  dismissed  at  the  next  term  after  dissolution,  unless  the 

*  The  confessions  of  llio  payee  of  a  promissory  note,  tlioueh  made  when  the  note  was  his  property, 
have  been  held  inaclmissilile  af^ainst  the  iiidorBce.  If  liviiijj  he  must  bo  called  and  sworn.  4  Barn.  & 
Crea.  329.  2  Binp;.  L'69.  In  ilim  last  case,  which  was  at  nisi  priu?,  the  evidence  seema  to  have  been 
countenanced,  but  herein  it  was  considered  extrajudicial. 


caiAP.  2i.]  AVOIDING  ILLEGAL  CONTRACTS.  489 

injunction  be  reinstated,  or  cause  be  shewn  for  carrying  on  the  suit  as  an 
original  bill:  1  R.  C.  ch.  66,  §60:  though  this  provision  only  applies 
to  mere  bills  of  injunction,  and  not  to  such  as  have  upon  their  face  a  further 
object.  4  Mun.  490.  6  Mun.  397.  In  the  county  courts  the  dismission 
cannot  be  until  two  terms  have  passed.     1  R.  C.  ubi  supra.     3  Mun.  88. 

If  the  plaintiff  dies  the  defendant  may  have  a  rule  on  his  representative, 
to  shew  cause  why  the  suit  should  not  be  revived  or  the  injunction  be  dis- 
solved, and  on  failure  to  revive  or  shew  cause  it  will  stand  dissolved.  4 
Ran.  195. 

After  an  injunction  has  been  dissolved,  no  motion  to  reinstate  can  be 
made  except  upon  new  evidence,  unless  by  the  special  permission  of  the 
court ;  and  in  like  manner  if  the  motion  to  dissolve  be  refused,  no  new  mo- 
tion to  dissolve  can  be  made,  unless  upon  new  evidence.  Moreover  if  up- 
on the  final  hearing  the  aspect  of  the  case  has  not  been  changed  by  new 
evidence,  the  court  does  not  again  look  into  the  papers,  but  perpetuates  the 
injunction  if  a  dissolution  was  refused,  or  dismisses  the  bill  if  the  injunc- 
tion had  been  dissolved.  On  a  motion  to  dissolve  no  costs  can  be  given, 
(2  H.  &M.  7,)  for  the  decree  for  costs  must  always  await  the  final  hearing. 
See  as  to  damages  in  cases  of  dissolved  injunctions,  1  R.  C.  ch.  66,  §  61, 
and  6  Mun.  36,  176. 

If  an  application  for  an  injunction  be  refused,  the  chancellor  endorses 
his  refusal  on  the  bill,  and  then  it  may  be  presented  to  the  judges  of  the 
court  of  appeals,  or  any  one  of  them,  who  may  at  discretion  direct  it  to  be 
awarded.  And  so  where  an  injunction  is  dissolved,  the  judges  of  the  court 
of  appeals,  or  any  one  of  them,  may  allow  an  appeal  from  the  order  of  dis- 
solution. 1  R.  C.  ch.  66,  §  44.  But  the  chancellor  cannot  allow  an  ap- 
peal from  his  own  order  of  dissolution.  Yet  he  may  from  his  refusal  to 
dissolve,  and  if  he  refuses  an  appeal,  the  court  of  appeals  may  allow  one. 
1  R.  C.  ch.  06,  §  57.  This  was  done  in  Norris  vs.  Crummey,  in  2  Rand., 
though  it  does  not  appear  in  the  report  of  the  case. 

An  appeal  from  the  dissolution  of  an  injunction  revives  it.  5  Ran.  332. 
On  such  appeals  security,  it  is  said,  is  only  required  for  costs  and  damages. 
4  Ran.  564.  Sed  qucere  since  the  act  which  makes  the  security  in  the  ap- 
peal bond  responsible  to  the  security  in  the  injunction  bond. 

An  application  to  reinstate  an  injunction  is  considered  in  the  same  light 
as  an  original  application,  for  one  and  the  same  right  of  appeal  exists.  1 
Rand.  414.  I  now  proceed  to  the  remaining  heads  of  jurisdiction,  which 
must  be  very  cursorily  treated. 

X.  "OF  AVOIDING  ILLEGAL  CONTRACTS." 

Tho"Th  it  is  a  principle  of  equity  that  no  person  shall  receive  its  aid  who 
does  not  come  before  it  with  clean  hands,  and  that  he  who  hath  committed 
iniquity  shall  not  have  equity,  and  though  no  court  of  justice  will  assist  a 
party  to  enforce  an  illegal  contract,  yet  even  a  court  of  equity  will  interfere 
to  set  aside  contracts  which  have  been  entered  into  against  law.  In  these 
cases  the  relief  is  not  given  from  any  tenderness  to  the  party  who  has  been 
particeps  criminis,  but  is  said  to  be  afforded  to  the  public  through  him. 
Thus  the  law  having  prohibited  the  establishment  of  unchartered  banks,  all 
notes  discounted  by  such  banks  were  relieved  against;  in  chancery.  1 
Rand.  76.  So,  too,  relief  is  given  against  a  gaming  bond,  (3  Rand.  214,) 
though  both  parties  are  engaged  equally  in  the  illegal  transaction,  an  ob- 
jection which  was  formerly  considered  a  barrier  to  the  interference  of  equi- 
ty. Talbot's  Cases,  38.  The  student  will  find  this  subject  largely  discus- 
sed in  Snyder  vs.  Dailey,  1  Rand.  76. 
VOL.  2 — 62 


490  CONTRIBUTION.  [  book  3. 

XI.  OF  "  CONTRIBUTION." 

/>  Tlie  doctrine  of  contribution  is  well  known  to  the  common  law,*  which 
-provided  the  remedy  by  contribution,  where  several  parties  were  liable  for 
a  debt  or  duty  which  was  about  to  fall  on  one.  See  3  Co.  11.  The  most 
usual  course,  however,  is  by  bill  in  equity  to  enforce  contribution  :  for  it  is 
a  principle  of  tliat  court  that  equality  is  equity,  and  that  one  man  ought  not 
to  bear  a  burden  in  ease  of  another.  4  John.  338.  And  this  bill  lies  in  a 
variety  of  cases.  See  4  Kan.  553.  2  Ev.  Poth.  67,  68,  in  note.  1  Hov. 
512.  2  Bos.  &  Pul.  208,  270.  14Vez.  164.  Starkie,  p.  4,  1385.  Thus 
one  surety  may  in  equity  compel  another  to  contribute  towards  payment  of 
a  debt  for  which  they  are  jointly  bound,  (6  Vez.  808.  1  Mad.  190.)  though 
this  may  be  effected  by  a  shorter  and  less  expensive  procedure  by  our  law. 
1  R.  C.  ch.  110,  §  2.  But  in  such  cases  it  has  been  adjudged  that  contri- 
bution will  not  be  enforced  against  co-securities  unless  it  be  shewn  that  due 
diligence  has  been  used  to  obtain  the  sum  claimed  from  the  principal,  or 
that  he  is  insolvent.  3  Mun.  484.  A  distinction,  however,  appears  to 
have  been  taken  by  others  between  tlrose  cases  in  which  the  security  files 
his  bill  against  the  principal  and  surety  both,  to  recover  what  he  has  actual- 
ly paid,  and  those  in  v/hich  the  principal  is  not  made  a  party.  In  the  lat- 
ter case  insolvency  must  be  proved  ;  in  the  former  it  need  not.  1  Cox's 
Ca.  Eq.  275.  For  in  the  former  case  the  principal  being  a  party,  the  co- 
security  defendant  can  have  a  decree  over  against  him  for  the  amount  de- 
creed against  himself.  In  the  latter  case  he  cannot ;  and  as  the  plaintiff- 
security  has  failed  to  make  him  a  party  whereby  the  co-security  might  liave 
his  remedy  uno  flatu  with  the  decree  against  himself,  he  ought  to  shew  that 
it  would  have  been  futile.  By  our  act,  however,  the  insolvency  of  the  prin- 
cipal is  made  the  basis  of  the  summary  remedy.     See  1  R.  C.  ch.  116,  §  2.t 

An  agreement  of  the  creditor  to  collect  his  debt  raleably  of  the  several 
parties  to  a  note  will  be  enforced.     4  John.  22. t 

Nor  is  the  remedy  by  contribution  to  be  considered  as  confined  to  those 
cases  where  each  party  is  bound  for  a  proportion  ;  for  if  both  parties  are 
bound  for  the  whole  debt  to  tlie  creditor  (but  one  of  them  ought  in  justice 
to  pay  the  whole  and  exonerate  the  other)  this  bill  will  still  lie.§  As  in  the 
case  of  a  bill  or  motion  of  the  security  against  his  principal.  So  in  the 
case  of  a  supplemental  security.  1  Mad.  190.  x\s  where,,  in  England, 
tiie  principal  being  taken  on  a  writ,  gave  bail,  the  bail  bond  was  in  equity 
directed  to  be  assigned  over  to  the  security  ifi  the  bond,  and  thus  the  bail, 
though  but  a  security  himself,  was  made  to  indemnify  the  security  in  the 
bond  by  discharging  the  whole  claim.  See  2  Vern.  608,  approved  11  Vez. 
22.     1  Eq.  Ca.  'J3.     1  Wils.  40,  cited  Chitty  on  Bills,  441.     And  this  I 

•'lam  not  aware,  Ijowever,  tliat  conlrihiuion  was  enforrod  at  common  law  lietween  co-sernrilies 
ill  an  ohiigalion  until  riiodpin  times.  In  14  Vpz.  KA,  Lord  KIdori  say?,  lliat  "in  viodem  times  courts 
of  law  liave  assuined  jurisdiction  upon  lliis  suliject  by  way  of  assumpsit;  a  jiirisdiclion  convenient 
enougli  ill  a  cascsiuifile  and  uucoinplicaled,  but  aliended  wiili  great  ddliculty  where  the  sureties  are 
iiuiiicrous." 

Where  two  pcrson.s  are  jointly  bound  for  a  third,  and  pay  the  debt  jointly,  lliey  may  sue  jolndy,  1 
Cair  &,  Payne,  44,  ai  nisi  prius.  There  was  a  rule  torn  new  trial.  I  do  not  lind  how  it  waa  disponed 
of.    See  5  E.  iiJ5.    3  lio.s.  &.  Pul.  235. 

For  the  doctrines  of  general  averiige,  see  2  IJarn.  &.  Crcs.  805. 

t  A  surely  is  entitled  to  recover  the  amount  paid  hv  him  on  an  tisuriou.j  bond,  provided  the  payment 
waa  made  without  collusion.    1  JViass.  Rep.  l'3D.    1  Bac.  Abr.  yjij. 

tSo  an  agrccmeni  between  three  securities,  to  be  responsible  in  Ihirdd,  takes  the  case  out  of  the 
principle.    11  Vez.  161',  ciiing  1  liep.  ch.tiO. 

^See  14  Vez.  159.  I  IIuv.  Sup.  51L'.  G  Vez.  un.5.  4  Ran.  503.  Il  seems  fliat  where  a  surety  Ls  in 
relcrence  to  another  surely,  a  principal,  he  can  have  no  conlribiition  asaiiift  hiin.  14  Vez.  159,  16l). 
A  person  may  lalsc  himsell  out  of  llu-  principle  of  contribution  by  his  coiKiact.  Id.  KM.  And  where 
the  intention  o(  (he  transaction  is  '.hat  the  party  is  to  be  bound  as  sJ/re^V  ron  llie  surety,  and  not  as 
co-surety  with  him,  he  cannot  be  liable  lo  him  for  contribution-.  Thi.sal  least  seems  fairly  infcrri 
ble  from  wliat  is  sai'l  in  tWe  same  ra.se,  IGO,  170.    Sec  Baxter  is.  Moore,  to  be  reported. 


CHAP.  21.]  CONTRIBUTION.  491 

conceive  on  good  reason,  for  when  the  writ  was  served  on  the  principal,  if 
he  had  been  unable  to  give  bail  he  might  have  paid  the  debt  or  surrendered 
property,  and  thus  the  surety  in  the  bond  would  have  been  saved.  As, 
however,  by  the  intrusion  of  the  bail  this  may  have  been  prevented,  he  was 
justly  charged  : — for  he  trusted  last,  and  having  by  his  act  relieved  the  prin- 
cipal from  a  pressure  which  might  have  been  the  salvation  of  the  security, 
he  ought  to  be  the  sufferer.  In  like  manner,  it  seems  to  me,  that  if  judg- 
ment be  rendered  against  A  and  B  his  security,  and  A's  property  alone  is 
taken  in  execution,  and  C  goes  security  in  a  delivery  bond,  B  not  joining 
in  it,  he  can  never  charge  B  with  any  part  of  the  debt,  though  he  has  to 
pay  it.  So  if  there  be  judgment  against  A  alone  on  a  bond  given  by  A  and 
B  his  security,  and  A  appeals  or  enjoins  the  judgment,  and  C  becomes  his 
security  in  an  injunction  or  appeal  bond,  and  the  injunction  is  dissolved  or 
the  judgment  is  affirmed,  B,  though  still  liable  to  the  creditor,  may  compel 
these  supplemental  securiiies  to  pay  the  debt:  for  but  for  them  it  might 
have  been  recovered  from  the  principal.  On  this  point  there  is  no  adjudg- 
ed case  within  my  knowledge.     But  now  see  Sess.  Acts. 

Bills  filed  by  heirs,  or  legatees,  or  distributees,  against  their  co-heirs,  &c. 
fall  under  this  head.  Thus  where  there  are  several  heirs,  and  the  creditor 
collects  his  debt  from  part  of  the  inheritance  which  is  allotted  to  one  of 
them,  he  is  entitled  to  contribution  from  the  rest.  5  John.  2-35.  Enough 
has  been  said  of  the  case  of  legatees  and  heirs  in  a  former  part  of  these 
commentaries. 

So  in  cases  of  rents-charge  granted  out  of  lands  which  afterwards  come 
to  the  hands  of  several  tenants,  the  grantee  of  the  rent  may  be  restrained, 
it  is  said,  from  levying  the  whole  rent  upon  one  of  them.  1  Mad.  192.  Be 
this  as  it  may,  if  one  pays  the  rent  the  others  may  be  compelled  to  contri- 
bute. So  where  a  doweress  recovers  mesne  profits  from  the  heirs,  if  one 
pays  more  than  his  share  the  rest  shall  contribute.  4  John.  604.  So  a  te- 
nant for  life  may  be  compelled  to  contribute,  to  keep  down  interest  on  a 
mortgage  ;  or  if  the  mortgagor  sell  to  two  or  more  jointly,  they  must  contri- 
bute pro  raid  to  paying  oft  the  mortgage.  So  if  there  be  a  mill  held  in  com- 
mon between  two  persons,  which  falls  into  decay,  and  one  refuses  to  per- 
mit it  to  be  repaired,  yet  the  other  may  repair  and  compel  him  to  contri- 
bute. And  this  might  even  have  been  done  by  writ  of  contribution  at  com- 
mon law.  F.  N.  B.  1(52,  b.  And  so  if  there  be  a  party  wall  between  two 
persons,  and  one  refuses  to  repair,  the  other  may  repair,  or  if  necessary 
even  pull  it  down  and  re-build  it  of  the  same,  but  not  of  greater  dimensions, 
or  more  expensive  materials,  and  charge  the  other  for  contribution.  4  John. 
338.  1  Rand.. 332.  The  civil  law  considers  that  as  a  party  wall  which  was 
built  at  common  expense,  or  which,  though  built  by  one  party  only,  the 
other  has  acquired  a  common  right  to.     4  John.  339. 

To  this  doctrine  of  contribution  there  is  one  single  exception  ;  that 
there  never  will  be  contribution  decreed  atriong  wrongdoers.  For  if  one 
pays  the  whole  damage  he  cannot  force  the  others  to  contribute  their  pro- 
portion (2  John.  13G,f  either  at  law  (S  T.  R.  180.  1  Camp.  313.  2  Cam. 
452,)  or  in  equity:  1  Vez.  &  Beam.  117;  1  Rand.  328;  where  the  court 
was  equally  divided  as  to  the  case  at  bar,  but  agreed  as  to  the  general  prin- 
ciple. 

From  what  has  been  said,  we  may  perceive  that  the  doctrine  of  contri- 
bution is  founded  not  on  contract,  express  or  implied,  but  on  the  principle 
that  equality  of  burden,  as  to  a  common  riofht  or  dutv,  is  equity.  4  John. 
338.  1  Cox's  cases,  318.  1  Rand.  -332,^334.  2  Rand.  530.  But  the 
parties  must  be  in  cqnalijure.  Thus  if  a  conuzor  (so  of  a  mortgagor)  dies, 
having  sold  a  j)art  of  the  lands  bound,  to  several  purchasers,  and  leaves  a 
part  to  descend  to  his  heirs,  they  cannot  demand  contribution  of  the  pur- 


492  SUBSTITUTION.  [  BOOK  -S 

chasers,  because  they  are  not  in  ecpinli  jure ;  but  tlie  purchasers  may  of 
each  other,  (3  Coke,  t2,  14,)  without  rei^ard,  it  is  said,  to  the  lime  or  order 
of  their  purchases.  1  Rand.  332.  Sed  qucere  as  to  this,  and  see  the  rea- 
soning 5  John.  241.     See  also  1  John.  447.* 

XII.  OF  "SUBSTITUTION." 

This  is  one  of  the  most  pervading  principles  of  courts  of  equity.  See  4 
Ran.  444. t  It  is  that  by  which  a  party  who  has  paid  a  debt  or  borne  a  bur- 
den for  another,  is  substituted  or  subrogated  (as  it  is  called  in  the  civil  law) 
to  the  rights  of  the  creditor.  The  instances  of  this  are  without  number. 
Thus  we  have  seen  that  if  a  person  has  paid  for  necessaries  for  an  infant, 
he  is  substituted  or  subrogated  to  the  rights  of  the  tradesman,  and  may 
compel  payment ;  and  upon  a  like  principle  the  whole  doctrine  of  mar- 
shalling assets  depends.  And  so  also  with  respect  to  marshalling  securi- 
ties. If  one  creditor  has  a  mortgage  on  white  acre,  and  another  has  a  pri- 
or lien  both  on  black  and  white  acre,  if  the  last  is  paid  out  of  white  acre, 
the  first  will  be  substituted  to  his  rights  in  black  acre.  See  1  Mad.  302. 
So  if  a  security  pays  off  a  bond  which  is  secured  by  mortgage,  he  will  be 
entitled  to  stand  in  the  shoes  of  the  mortgagee,  in  order  to  indemnify  him- 
self: 1  Eq.  Ca.  93.  5  Bac.  168.  II  Vez.  12.  See  1  Wash.  1 :  and  so  if 
a  security  pays  off  the  bond,  he  will  stand  in  the  bond-creditor's  shoes,  as 
against  the  heir.  5  Mun.  419.  In  order  to  present  this  subject  as  clearly 
as  I  can  to  the  student,  we  will  proceed  to  state  very  succinctly  the  princi- 
ple under  distinct  heads. 

1.  As  between  the  creditor  and  the  security.  These  parties  are  consi- 
dered as  always  standing  in  such  intimate  relation  to  each  other,  that  any 
act  done  by  the  one  for  his  own  security,  enures  to  the  benefit  of  the  other. 
Thus  if  either  the  creditor  or  security,  at  the  time  at  which  the  security  be- 
comes bound,  or  at  any  time  before  or  after,  takes  a  lien  on  real  or  person- 
al property,  the  olher  party  is  entitled  to  the  benefit  of  it:  so  that  if  the  se- 
curity fails,  the  creditor  may  enforce  the  lien  the  surety  may  have  taken,  or 
if  the  creditor  compels  him  to  pay  the  money,  he  is  entitled  to  stand  in  the 
creditor's  shoes  as  to  the  lien  he  has  obtained.  In  short,  either  is  entitled 
to  the  benefit  of  any  counter-bond  or  counter-security  which  the  other  has, 
and  is  entitled  to  stand  in  his  shoes  as  to  all  his  remedies.  See  1  Wash.  1. 
2  Call,  188.  3  Call,  333.  9  Cranch,  500.  2  Vern.  008.  2  Vez.  622.  2 
Merivale,  437.  10  Vez.  412.  11  Vez.  22.  14  Vez.  162.  1  John  412. 
2  John.  554.  4  John.  130,  370,  530,  545.  1  Rand.  53.  2  Rand.  429. 
And  the  principle  applies  as  well  where  the  creditor's  lien  is  only  a  vendor's 
implied  lien,  as  where  it  is  an  express  mortgage.     2  Rand.  430. 

So  far,  indeed,  is  the  doctrine  carried,  that  if  a  creditor  has  taken  a  mort- 
gage or  other  lien  from  the  principal  debtor  to  secure  himself,  and  invali- 
dates or  discharges  that  lien,  to  the  prejudice  of  the  rights  of  the  surety,  and 
disables  himself  from  transferring  them  to  him,  he  will  (unless  he  acted  with- 
out knowledge  of  the  other's  rights,  and  with  good  faith  and  just  intention,) 
be  precluded  from  so  much  of  his  demand  as  the  security  might  have  saved 
if  the  transfer  could  have  been  made.  2  Rand.  530.  3  Rand.  511.  In- 
deed Chancellor  Kent  seems  to  have  been  of  opinion  that  if  the  mortgage 
taken  by  the  creditor  was  void  because  of  usury,  the  creditor  would  lose 
his  recourse  by  reason  of  his  having  "poisoned  the  lien  in  its  very  incep- 
tion ;"  4  John  130  ;  a  doctrine  which  seems  to  me  not  very  reasonable.  It 

*  See  2  Carr  &l  Payno,  417,  r>  case  orjoint  coach  owners.  Daniagea  having  been  recovered  against 
one  only  for  an  injury  by  negligence  of  their  servant,  ho  liad  contribution  against  the  other,  it  ap- 
pearing that  he  was  ncitlier  personally  present  nor  personally  in  fault. 

1 2  Leigh,  111.    See  6  Bac.  abr.  scire  facias,  C.  5.    GMun.520,528.    lJohn.409. 


CHAP.  21.]  SUBSTITUTION.  493 

might,  indeed,  upon  the  principles  above  avowed,  be  contended  U'ith  much 
more  reason,  that  if  a  creditor  failed  to  have  his  mortgage  recorded  in  due 
time,  by  which  means  a  second  mortgage  obtained  a  preference,  the  secu- 
rity should  be  absolved  pro  tanto :  but  for  this  we  have  no  authority,  and  it 
would  be  pushing  these  doctrines,  I  think,  to  extremity. 

Chancellor  Kent,  however,  seems  disposed  to  carry  the  principle  to  its 
utmost  limit,  by  inclining  to  the  doctrine  of  the  civil  law,  which  requires  the 
creditor  who  has  a  mortgage  or  other  lien,  to  pursue  that  before  he  can  re- 
sort to  the  security.  4  John.  131,  133.  He  admits,  however,  that  there  is 
no  such  general  rule  of  equity  :  and  it  would  seem,  indeed,  in  conflict  with 
its  principles  if  it  took  away  the  remedies  of  the  creditor,  or  delayed  him  in 
his  recovery  for  the  benefit  of  the  security.  The  case  of  Wright  against 
Nutt,  (3  Br.  C.  C.  326,)  appears  to  me  to  be  the  only  case  which  has  deci- 
ded that  the  security  can  compel  the  creditor  to  resort  to  and  exhaust  a  cir- 
cuitous and  difficult  remedy  before  he  can  charge  the  security  himself:  and 
this  case  is  more  than  questioned  by  Lord  Eldon,  6  Vez.  714.  It  was  the 
case  of  an  American  creditor  of  a  Georgia  refugee,  whose  security  was  sued 
in  England.  The  state  of  Georgia,  by  its  acts  of  confiscation,  confiscated 
the  estates  of  refugees,  subject  nevertheless  to  debts  of  America?*  creditors. 
It  was  contended  that  the  American  creditor  could  get  paid  out  of  that 
fund,  but  the  security  being  an  Englishman  was  not  within  the  reservation, 
and  could  not  get  his  money  refunded  if  the  debt  was  paid  by  him.  The 
ibill  was  dismissed  on  the  ground  that  it  did  not  appear  that  the  creditor  had 
the  clear  means  of  making  his  demand  effectual  out  of  the  Georgia  fund, 
the  chancellor  expressing  an  opinion,  however,  in  favor  of  the  right  to  sue 
personally  even  in  that  case,  against  the  authority  of  3  Br.  C.  C.  326  ;  and 
only  admitting  that  the  surety  might  deposite  the  money  in  court,  and  in- 
demnify the  creditor  against  all  expenses  of  pursuing  the. claim,  and  there- 
upon compel  the  creditor  to  prosecute  for  his  benefit. 

It  must  be  observed,  however,  that  this  principle  of  compelling  a  creditor 
who  has  two  funds  to  resort  to,  to  look  to  that  which  will  leave  another  cre- 
ditor the  benefit  of  his  fund,  is  not  universal.  For  if  I  have  a  judgment 
against  A  and  B,  and  another  person  has  judgment  against  B,  he  cannot 
compel  me  to  look  only  to  A,  that  he  may  resort  with  more  success  to  B. 
For  unless  B  has  some  equity  to  demand  that  A  shall  pay  the  debt,  they  are 
jointly  bound,  for  (e.  g.  because  he,  B,  is  only  security,)  no  such  arrange- 
ment will  be  made  ;  4  John.  17.  17  Vez.  520,  527  ;  since  it  would  in  ef- 
fect make  A  security  for  B's  debt. 

2.  As  it  respects  the  security's  claim  to  be  subrogated  to  the  creditor's 
rights,  so  far  as  such  subrogation  will  affect  others.  Here  I  conceive  that 
if  in  the  lifetime  of  the  obligor  the  security  pays  off  the  bond,  he  at  once 
becomes  a  simple  contract  creditor  of  the  obligor,  and  he  shall  not  after  his 
death  rank  as  a  specialty  creditor,  or  charge  the  heir  by  any  substitution. 
For  first,  as  to  ranking  as  a  specialty  creditor ;  the  bond  creditor  in  the  ob- 
ligor's lifetime  has  no  preferable  right  to  payment ;  and  the  bond  having 
been  discharged  before  his  death,  no  preferable  right  to  payment  passed  to 
the  security  in  right  of  the  creditor  ;  and  the  debt  never  having  been  a  good 
subsisting  bond  debt  at  any  time  after  his  death,  it  would,  in  the  distribu- 
tion of  assets  in  a  court  of  law,  be  only  regarded  as  a  simple  contract  de- 
mand ;  nor  would  equity  interfere,  since  in  the  distribution  of  assets  it  fol- 
lows the  law.  But  where  the  bond  is  not  discharged  until  after  the  dece- 
dent's death,  then  it  was  once  a  good  subsisting  specialty,  the  payment  of 
which  the  creditor  might  have  enforced  against  the  estate  ;  it  had  a  prefer- 
able right  to  payment  out  of  the  assets  beyond  simple  contract  debts  ;  to 
which  preferable  right  the  security  was  substituted  when  he  discharged  the 


494  WANT  OF  REMEDY   AT  LAW.  [book  3. 

bond.*  Second  ;  as  to  the  ri^rht  of  the  security  to  charfre  the  heir  by  sub- 
stitution, the  same  reasons  prevail.  For  iji  the  ancestor's  lifetime  the  cre- 
ditor has  no  lien  or  claim  against  his  land,  unless  he  has  a  judgment.  When, 
therefore,  he  pays  the  bond  debt  in  the  life  of  the  obligor,  he  is  subrogated 
to  no  right  to  charge  the  Jand.  But  if  the  obligor  dies,  the  bond  being  un- 
paid, a  right  instantly  attaches  in  the  creditor  to  charge  the  heir  in  respect 
of  the  assets  descended,  and  to  this  right  the  security  is  subrogated  on  pay- 
ing the  debt.  See  on  this  subject,  2  Cull,  188.  3  Call,  333.  This  last  was 
the  case,  however,  of  the  distribution  of  an  insolvent's  effects.  In  the  first 
of  these  cases  it  was  decided  that  the  security  should  rank,  indeed,  as  a  spe- 
cialty creditor,  (the  debt  having  subsisted  after  the  obligor's  death,)  but  not 
so  as  to  charge  the  executors  with  a  devastavit  en  account  of  payments  or 
judgments  to  simple  contract  creditors. 

3.  As  between  sureties  themselves  ;  where  there  are  several  sureties  in  a 
bond,  and  the  principal  conveys  property  in  trust  to  indemnify  some  of 
them,  and  the  rest  are  not  provided  for  in  the  deed,  it  has  been  decided  that 
the  sureties  who  are  so  omitted  shall  have  the  protection  and  benefit  of  the 
deed  of  trust.  2  Ran.  514,  530,  532,  citing  and  relying  on  5  Mun.  187,  to 
the  same  point. 

4.  As  to  assignees.  The  assignee  of  a  bond  is  entitled  to  the  benefit  of 
all  mortgages,  trusts,  or  other  liens,  for  the  security  of  the  original  debt. 
And  where  the  debtor  executed  a  deed  of  trust  to  secure  payment  of  three 
notes  by  instalments;  the  first  was  paid;  the  second  was  assigned  to  B 
(without  the  deed  of  trust  being  assigned  ;)  the  third  was  assigned,  together 
with  the  deed  of  trust,  to  C.  Yet  the  second  note  had  preference,  for  it 
was  first  assigned  and  its  payment  first  provided  for  ;  and  though  the  deed 
was  not  assigned,  the  right  to  avail  himself  of  it  passed  to  the  first  assignee  ; 
a«d  though  this  was  but  an  equitable  right,  yet  the  deed  itself  was  notice 
to  the  last  assignee  of  its  existence,  since  it  ought  to  have  put  him  on  in- 
f]uiry  where  the  second  note  was  whose  payment  was  provided  for.  1  Ran. 
466.  Sed  quarc, — if  the  third  bond  were  first  assigned,  the  assignee  would 
not  have  preference  of  the  subsequent  assignee  of  the  second.  See  the 
reasoning,  5  John.  241. 

The  next  head  of  jurisdiction  is 

XIII.  "THE  V/ANT  OF  REMEDY  AT  LAW." 

And  here  it  is  only  necessary  to  remark,  that  where  there  is  a  clear  right 
but  no  remedy  at  law,  a  court  of  equity  will  always  lend  its  aid.  This  is 
a  sweeping  clause  in  the  definition  of  its  jurisdiction.  But  if  it  appears 
that  the  case  made  by  the  bill  is  solely  cognizable  at  law,  a  demurrer  will 
lie;  though  not  so  if  the  matter  is  one  of  concurrent  jurisdiction.  See  1 
Mad.  229,  230.     We  pass  on,  therefore,  to  the  next  head. 

XIV.  "  OF  THE  JURISDICTION  CONFERRED  BY  STATUTE." 

And  here  it  will  be  only  necessary  to  particularize  such  subjects  as  occur 
to  recollection,  and  to  refer  to  the  statutory  provisions  in  relation  to  them. 

1.  The  jurisdiction  for  the  sale  of  inflints'  estates.  1  R.  C.  ch.  108.  See 
also  ch.  96,  §  20,  as  to  the  sale  of  estates  where  the  share  of  each  heir  will 
not  exceed  $300.     Repealed  in  1827  and  re-enacted  in  1828. 

'See  4  Ran.  438.  Sed  vide  3  Condei),  C.  Rrp.  C6"),  wlieie  it  is  =;ii(l  tlie  creditor  must  have  n  sul)- 
sisting  right  of  action;  that  without  siirh  right  tlie  surety  c:«iiiiot  Ijp  giil)ronated  to  it,  and  that  there- 
fore where  the  surely  payaofi"  liio  liund,  the  riijht  ot  artioii  is  gone  and  he  stands  in  the  situation  ot 
a  simple  contract  creditor  only.  Sec  also  1  Tolhier,  324.  fc'ee,  however,  2  Leigh,  283,  21),  70,  444. 
3  Leigh,  272. 


I 


CHAP.  21.]       JURISDICTION  IN  ECCLESIASTICAL  CAUSES.       495 

2.  The  jurisdiction  over  all  matters  between  guardians  and  theif  wards. 
1  11.  C.  ch.  108,  §  4. 

3.  The  jurisdiction  in  all  cases,  where  a  person  interested,  who  has  not 
appeared  and  contested  the  probat  of  a  will,  files  his  bill  in  equity  contest- 
ing its  validity.     1  R.  C.  ch.  101,  §  13. 

4.  The  jurisdiction  in  cases  of  attachments  against  non-resrdents.  See 
I  R.  C.  ch.  3-2. 

6.  There  is  a  special  jurisdiction  given  to  the  superior  court  of  chancery 
at  Richmond,  in  cases  in  which  the  commonwealth  is  iateresled.  1  R.  G. 
chapter  66,  sections  45,  46,  47. 

G.  From  decisions  of  the  auditor,  a  party  who  thinks  himself  aggrieved 
is  authorized  to  petition  for  redress  to  the  chancery  court  at  Richmond,  or 
the  superior  court  of  law  at  that  place.     2  R.  C.  ch.  174,  §  6. 

XV.  OF  "  JURISDICTION  IN  ECCLESIASTICAL  CAUSES." 

I  am  not  aware  of  any  other  case  but  that  of  divorce,  in  which  the  pow- 
ers of  an  ecclesiastical  court  have  been  adjudged  to  be  vested  in  the  court 
of  chancery.  It  will  be  unnecessary  to  add  any  thing  here  upon  that  sub- 
ject, to  what  has  been  already  said  in  the  first  book  of  the  commentaries. 

(J(3r>  This  jurisdiction,  which  was  long  a  subject  of  much  difficulty,  as  we 
have  seen,  rests  at  present  not  upon  inference  only,  but  upon  the  express 
j)rovisions  of  an  act  of  assembly  enacted  in  1826.  It  "  gives  to  the  superior 
courts  of  chancery  jurisdiction  to  dissolve  and  declare  marriages  null  and 
void,  for  natural  or  incurable  impotency  of  body  at  the  time  of  the  contract ; 
idiocy  and  bigamy  ;  and  to  grant  divorces  a  mensa  el  thoro  on  account  of 
adultery,  cruelty,  and  just  cause  of  bodily  fear  :  to  decree  perpetual  sepa- 
ration and  protection  to  the  person  and  property  of  the  parties,  and  allow 
maintenance  to  either  ;  to  restore  to  the  injured  the  rights  of  property  con- 
ferred on  the  other,  and  to  dispose  of  the  issue  as  may  seem  right ;  but  in  a 
divorce  from  bed  and  board,  neither  shall  marry  during  the  life  of  the  other. 
Where  a  person  is  desirous  of  petitioning  the  legislature  for  a  divorce,  a 
statement  of  the  causes  therefor  shall  be  filed  in  the  clerk's  office  of  the  su- 
perior court  of  law  for  their  county,  of  which  notice  is  to  be  given  to  the 
adverse  party,  upon  which  a  jury  is  to  be  empannelled  to  ascertain  the  facts, 
and  their  verdict  shall  be  recorded.  A  certified  copy  of  which  proceedings' 
shall  accompany  every  such  petition.  The  costs  in  such  suits  to  be  at  the 
discretion  of  the  chancellor.  Appeals  to  the  court  of  appeals,  as  in  other 
suits.     Session  Acts,  1826. 

I  have  now  finished  what  I  purposed  to  deliver  to  the  student  on  the 
principles  and  jurisdiction  of  courts  of  equity.  The  sketch  with  which  he 
is  presented  is,  I  am  conscious,  exceedingly  superficial  and  imperfect,  and 
will  leave  great  room  for  his  own  researches.  To  have  attempted,  how- 
ever, a  complete  essay  upon  this  comprehensive  subject,  would  have  been 
as  inconsistent  with  any  just  estimate  of  my  own  powers  and  acquirements, 
as  with  the  elementary  plan  of  these  lectures.  I  conclude,  therefore,  with 
an  earnest  recommendation  of  the  works  I  have  so  often  quoted,  which  will 
be  found  to  contain  a  valuable  summary  of  the  doctrines  of  equity,  and  to 
serve  as  excellent  indexes  to  the  late  reporters.  Besides  these,  there  are 
numerous  cases  in  our  own  reports  which  I  have  not  deemed  it  necessary 
to  cite,  that  bear  upon  the  principles  which  have  been  advanced,  and  pre- 
sent new  views  of  equity  that  the  student  will  often  find  exceedingly  inter- 
esting, and  always  very  instructive. 


496  EQUITY  PRACTICE.  [  BOOK  3.' 

CHAPTER  XXII. 
OF  THE  MODE  OF  PROCEEDING  IN  COURTS  OF  EQUITY.' 

"  It  is  now  time  to  proceed  to  the  practice  of  our  courts  of  equity. 

"  The  first  commencement  of  a  suit  in  chancery  is  by  preferring  a  bill  to 
the  chancellor  in  the  style  of  a  petition  ;  '  humbly  complaining  sheweth  to 
your  honor  your  orator  A.  B.  that,  &,c.'  This  is  in  the  nature  of  a  declaration 
at  common  law,  or  a  libel  and  allegation  in  the  spiritual  courts:  setting 
forth  the  circumstances  of  the  case  at  length,  as  some  fraud,  trust,  or  hard- 
ship ;  '  in  tender  consideration  whereof,  (which  is  the  usual  language  of 
the  bill,)  and  for  that  your  orator  is  wholly  without  remedy  at  the  common 
law,'  relief  is  therefore  prayed  at  the  chancellor's  hand,  and  also  process  of 
subpczna  against  the  defendant,  to  compel  him  to  answer  upon  oath  to  all 
the  matter  charged  in  the  bill.  And,  if  it  be  to  quiet  the  possession  of  lands, 
to  stay  waste,  or  to  stop  proceedings  at  law,  an  injunction  is  also  prayed, 
in  the  nature  of  an  inlerdiclum  by  the  civil  law,  commanding  the  defendant 
to  cease." 

It  is  a  general  principle,  laid  down  in  all  the  elementary  works,  that  the 
bill  must  call  all  necessary  parties,  however  remotely  concerned  in  interest, 
before  the  court ;  t  otherwise  no  decree  can  be  made  to  bind  them  ;  and  it 
is  the  great  object  of  this  jurisdiction  to  make  an  end  of  the  matter  of  con- 
test, which  object  would  be  defeated  if  parlies  concerned  in  interest  were 
not  bound  by  the  decree.  See  Mitford,  144.  2  Mad.  142.  3  Mun.  376. 
To  this  rule,  however,  there  are  many  exceptions  introduced,  partly  for  con- 
venience, and  partly  from  necessity,  as  will  be  discovered  upon  a  reference 
to  the  authors  just  cited,  and  the  cases  referred  to  by  them.  Thus  when  a 
bill  is  only  for  a  discovery,  he  only  need  be  a  party  from  whom  it  is  sought ; 
2  Eq.  Ca.  70  ;  where  the  parties  plaintiff  are  very  numerous,  as  in  the  case 
of  some  companies,  some  are  permitted  to  sue  on  behalf  of  themselves 
and  the  company;  2  Mad.  145;  or  if  they  have  a  trustee,  it  is  sufficient  in 
such  case  that  he  only  should  be  made  a  party.  2  John.  C.  C.  197.  In 
like  manner,  creditors  of  a  decedent  may  sue  on  behalf  of  themselves  and 
all  other  creditors  of  the  estate  ;  2  Vez.  313.  6  John.  C.  C.  1.39.  2  John, 
C.  C.  283 ;  and  the  decree  is  then  for  the  benefit  of  all  creditors ;  who  are 
called  upon  by  notice  in  the  gazette  to  come  in  and  prove  their  debts  be- 
fore the  master  (or  commissioner  as  we  call  him.)  4  John.  619.  Mere 
nominal  trustees,  however,  cannot  maintain  a  bill  in  equity,  unless  the  cestui 
que  trust  is  also  made  a  party  plaintiff  or  defendant;  5  John.  242 ;  I  and 
moreover,  all  trustees,  executors,  &c.  must  be  parties  to  any  suit  respecting 
the  subject-matter  of  the  trust.  4  John.  116.  If,  indeed,  one  party  thinks 
it  necessary  to  sue,  and  another  who  is  linked  with  him  in  interest  refuses 
to  join,  it  is  usual  to  make  him  a  party  defendant,  so  that  the  great  objects 
of  the  court  are  effected,  viz  :  the  doing  complete  justice  by  deciding  upon 
and  settling  the  rights  of  all  persons  interested  in  the  subject  of  the  suit,  so 
as  to  prevent  future  litigation  and  to  make  the  performance  of  the  orders 
of  the  court  perfectly  safe  to  those  who  are  compelled  to  obey  them. 

"  It  has  been  decided  that  if  it  appears  from  the  face  of  the  bill  that  tlic  matter  thereof  is  not  pro- 
per for  a  court  of  equity  it  should  be  dismissed,  even  after  answer  tiled  and  no  plea  in  abatement  to 
tiie  jurisdiction  of  the  court.  I'ollard  vs.  Paiurson's  ad.  3  H  &.  M.  67.  Yet  where  no  objection  is 
made,  and  the  answer  developes  facts  which  show  that  llie  case  is  proper  for  the  jurisdiction  of  a 
court  of  equity,  the  bill  will  be  sustained.    4  Ran.  537.    1  Leigh,  195,  211. 

Wiicrc  thcplaintifT  has  complete  remedy  at  law,  equity  will  not  take  jurisdiction  of  his  case.  2 
Leigh,  370. 

tCreditors  and  legatees  are  exceptions  to  this  rule;  for  one  olten  sues  for  the  benefit  of  himself 
and  otliers,  and  then  they  come  in  and  prove  their  cases  before  a  master.  3  John.  553.  Residuary 
legatees,  however,  must  bring  all  entitled  to  the  residuum  before  the  court.    4  John.  199. 

}2John.23S.  1  Vciii.  110.   Prcc.  ch.  275.    IBall  &.  Beatiy,  13J.    4  Ran.  451.   3  Mun. 353, 376, 377. 


CHAP.  220  EQUITY  PRACTICE.  497 

With  all  the  advantages  which  are  attributed  to  the  rule  of  which  we 
have  just  been  speaking,  it  must  be  confessed,  however,  to  have  the  effect 
very  often  of  encumbering  a  cause  so  much  as  to  render  its  prosecution 
exceedingly  difficult,  embarrassing,  and  expensive.  Hence,  perhaps,  it  may 
be  that  the  courts'  seem  so  readily  to  have  acquiesced  in  the  waiver  of  the 
objection,  by  him  who  is  entitled  to  insist  on  an  adherence  to  the  rule  which 
requires  even  formal  parties  to  be  made.  1  H.  &.  M.  49.  3  Mun.  29,  359, 
397. 

"The  bill  of  the  plaintiff  ought  in  strictness  to  be  signed  by  counsel,  as 
a  certificate  of  its  decency  and  propriety.  For  it  must  not  contain  matter 
either  scandalous  or  impertinent :  if  it  does,  the  defendant  may  refuse  to 
answer  it,  till  such  scandal  or  impertinence  is  expunged,  which  is  done  up- 
on an  order  to  refer  it  to  one  of  the  officers  of  the  court,  [called  commis- 
sioners in  chancery  ;  of  whom  there  are  several  in  the  different  parts  of  each 
chancery  district.]  He  is  to  examine  the  propriety  of  the  bill :  and  if  he 
reports  it  scandalous  or  impertinent,  such  matter  must  be  struck  out,  and 
the  defendant  shall  have  his  costs ;  which  ought  of  right  to  be  paid  by  the 
counsel  who  signed  the  bill."  The  bill  may  be  amended,  if  it  be  necessary, 
upon  payment  of  costs  occasioned  by  the  amendment. 

When  the  bill  prays  an  injunction  in  the  commencementof  the  proceed- 
ings, it  is  presented  to  the  chancellor  (as  has  already  been  said)  before  any 
process  issues,  who,  thereupon,  either  allows  or  refuses  the  prayer  for  an 
injunction  ;  if  it  be  allowed,  he  endorses  the  bill  to  that  effect;  and  upon 
its  being  handed  to  the  clerk,  he  then  issues  the  subpoena,  with  an  endorse- 
ment thereon  of  the  order  of  injunction;  all  of  which  has  been  already  ex-- 
plained.  If  the  injunction  be  refused,  the  plaintiff  may  itevertheless  pro- 
ceed with  his  bill  as  an  original  bill,  and  a  subpcena  will  accordingly  issue, 
though  without  the  endorsement  of  a  restraining  order. 

Except,  however,  in  cases  of  injunction  and  ne  exeat,  in  which  the  party 
in  commencing  his  suit  finds  it  necessary  to  apply  to  the  chancellor  for  his 
order,  the  bill  neednot  be  filed,  and  is  rarely  filed  before  the  subpcsna  issues  5 
an  anomaly  which  will  strike  the  student,  because  every  bill  concludes  with 
a  prayer  that  a  subpoena  may  issue,  when  in  truth  and  in  fact  it  has  already 
issued.  The  subpcena  "  is  a  writ  commanding  the  defendant  to  appear  and 
answer  the  bill  on  pain  of  iElOO  ;"  which  penalty,  however,  is  mere  matter 
of  form.  If  the  defendant  be  an  infant  or  idiot,  or  deaf  and  dumb,  or  im- 
becile from  old  age,  a  guardian  ad  litem  must  be  appointed  for  him,  and  it 
is  the  plaintiffs  duty  to  have  this  done.  The  guardian  is  usually  an  officer 
of  the  court  unless  an  actual  defence  is  intended,  in  which  case  some  rela- 
tion or  friend  is  appointed.  The  answer  put  in  by  the  guardian  ad  litem 
generally  puts  the  plaintiff  upon  the  proof  of  his  whole  case,  and  asks  the 
protection  of  the  court  for  the  rights  of  the  infant. 

According  to  the  English  practice,  which  was  common  with  us  formerly, 
"  if  the  defendant,  on  service  of  the  subpoena,  does  not  appear  within  the 
time  limited  by  the  rules  of  the  court,  and  plead,  demur,  or  answer  to  the 
bill,  he  is  then  said  to  be  in  contempt ;  and  the  respective  processes  of  con- 
tempt are  in  successive  order  awarded  against  him.  The  first  of  which  is 
an  attachment,  which  is  a  writ  in  the  nature  of  a  capias,  directed  to  the 
sheriff,  and  commanding  him  to  attach,  or  take  up,  the  defendant,  and 
bring  him  into  court.  If  the  sheriff  returns  that  the  defendant  is  non  est 
inventus,  then  an  attachment  with  proclamation  issues ;  which,  besides  the 
ordinary  form  of  attachment,  directs  the  sheriff,  that  he  cause  public  pro- 
clamations to  be  made,  throughout  the  county,  to  summon  the  defendant^ 
upon  his  allegiance,  personally  to  appear  and  answer.  If  this  be  also  re- 
turned with  a  non  est  inventus,  and  he  still  stands  out  in  contempt,  a  com- 
mission  of  rebellion  is  awarded  against  him,  and  if  this  be  returned  non  est 
VOL.  2—63 


498  EQUITY  PRACTICE.  [  book  3. 

inventus,  a  sergeant  at  arms  is  sent  in  search  of  him.  If  he  still  eludes  the 
officer,  a  sequestration  issues,  to  seize  all  his  personal  property  and  the  pro- 
fits of  his  real  estate,  and  to  detain  them  subject  to  the  order  of  the  court.- 
The  same  course  may  be  pursued  with  us  according  to  the  provisions  of  our 
statute,  1  R.  C.  ch.GG,  §  81.  But  it  is  very  unusual  since  the  late  regula- 
tions, which  have  been  introduced  into  the  practice  of  the  courts  by  the 
legislature.  By  these  it  is  now  provided,  that  in  every  subpoena,  there  shalt 
be  inserted  a  clause  or  notification  that  unless  the  defendant  shall  answer 
the  bill  within  four  months  thereafter,  the  court  will  take  it /or  confessed,  and 
decree  accordingly.*  A  copy  of  this  subpoena  is  directed  to  be  left  by  the 
marshal,  (the  officer  of  the  court,)  and  if  the  bill  be  filed  at  or  before  the 
return  day,  and  the  defendant  does  not  within  four  months  appear  and  plead, 
ansv/er,  or  demur,  the  plaintiff  may  either  set  the  cause  for  hearing,  and 
take  a  decree  upon  the  bill  as  confessed  ;  or,  if  he  finds  an  appeal  to  the 
conscience  of  the  defendant  necessary,  he  may  in  that  case  have  him  brought 
into  court  to  answer.  On  the  other  hand,  if  the  phaintiff's  bill  is  not  filed 
at  or  before  the  return  of  the  subpoena,  the  suit  stands  dismissed  for  want  of 
bill.  Sess.  Acts,  18'25,  ch.  15.  Before  this  act  the  English  mode  of  pro- 
ceeding had  been  much  abbreviated  by  former  statutes. 

The  process  against  a  corporation  is  in  England  a  distringas.  With  us 
a  subpoena  returned  executed  on  the  proper  officer  of  the  corporation  has 
the  effect  of  a  subpcena  returned  executed  in  other  cases,  and  the  subse- 
quent proceedings  thereupon  are  the  same.     1  R.  C.  ch.  122. 

Where  the  defendant  is  absent  from  the  Gommonwealth,  the  court  or  the 
clerk  in  the  office,  upon  affidavit  of  that  fact,  makes  on  order  commanding 
him  to  appear  on  some  day  in  the  succeeding  term  and  give  security  for 
performing  the  decree,  which  order  is  published  in  some  newspaper  and 
also  posted  at  the  court-house  door.  If  the  absent  defendant  then  appears 
and  gives  security  to  perform  the  decree,  he  is  permitted  to  file  his  answer, 
plea,  or  demurrer,  and  contest  the  plaintiff's  claim.  If  he  does  not  this,  the 
court  may  proceed  to  take  such  proof  as  the  plaintiff  shall  offer,  (though  not 
amounting  to  strict  legal  proof,  2  Ran.  200,)  and  if  thereby  satisfied  of  the 
justice  of  the  demand,  they  may  order  the  bill  to  be  taken  for  confessed, 
and  make  such  decree  as  may  appear  just;  which  decree,  however,  maybe 
reheard  upon  petition  at  any  time  within  seven  years,  upon  the  defendant, 
or  his  heir,  executor,  or  administrator  appearing  openly  in  the  common- 
wealth ;  and  upon  giving  security  for  costs,  he  or  they  may  answer  the  bill, 
and  the  cause  then  proceeds  as  in  other  cases  to  a  decree. t 

"  But. if  the  defeiidnnt  aj)])ears  regularly,  and  takes  a  copy  of  the  bill,  he 
is  next  to  demur,  plead,  or  answer. 

"  A  demurrer  in  equity  is  nearly  of  the  same  nature  as  a  demurrer  in  law  ; 
being  an  appeal  to  the  judgment  of  the  court,  whether  the  defendant  shall' 
be  bound  to  answer  the  plaintiff's  bill  ;  jis  for  want  of  sufficient  matter  of 
equity  therein  containr^d  ;  or  wh'^re  the  plaintiff,  upon  his  own  shewing, 
appears  to  have  no  right ;  or  Avhere  the  bill  seeks  a  discovery  of  a  thing 
which  may  cause  a  forfeiture  of  any  kind,  or  may  convict  a  man  of  any 
criminal  misbehaviour.!  For  any  of  these  causes  a  defendant  may  demur 
to  the  bill.     And  if,  on  demurrer,  the  defendant  prevails,  the  plaintiff's  bill 

Where  a  bill  is  filed  against  two  derendants  jointly  interested,  and  is  t«ken  for  confessed  against 
one  of  them,  and  the  other  appear?  and  disproves  the  plainiift's  rase,  tlie  bill  must  be  dismissed  as  to 
both  defendants.    10  John.  Hep.  5:H.    Canligree  i-s.  Raymond,  4  Leigh. 

4w„  ^  ^*  '°  "''^'"8  '•'lis  pro  confesso,  post.  603.  1  .John.  Ch.  C.  8,  i39,  630.  U  Jolm.  Ch.  Ca.  43, 152, 
ii^-  4John.  Ch.  Ca.547.  3  John.  Ch.  Ca.  415, 434.  2  Mad.  199.  4  Ran.  456.  4  Ve7..619.  Hinde, 
433.    3Mun.83.    4  Hen.  «St  :\).  476. 

>The  iict  of  5  Geo.  II.  ch.  2.5,  lakes  the  bill  pro  confesso  wiihout  proof:  ours  does  not. 

|Or  where  live  bill  has  juined  geveral  and  distinct  matters  or  rvirliet  not  proper  to  be  joined  in  the 
samasuit.    lMa(l.'J33.  i  i     i  j 


«IIAP.  22.]  EQUITY  PRACTICE.  499 

shall  be  dismissed  ;  if  the  demurrer  be  over-ruled,  the  defendant  is  ordered 
to  answer,  and  if  he  fails  to  do  so,  the  bill  is  taken  for  confessed. 

"  A  plea  may  be  either  to  the  jurisdiction ;  showing  that  the  court  has  no 
cognizance  of  the  cause  :  or  to  the  person ;  shewiagsome  disability  in  the 
plaintiff,  as  by  outlawry,  excommunication,  and  the  like:  or  it  is  in  bar; 
shewing  some  matter  wherefore  the  plaintiff  can  demand  no  relief,  as  an 
act  of  parliament,  a  fine,  a  release,  or  a  former  decree.  And  the  truth  of 
this  plea  the  defendant  is  bound  to  prove,  if  put  upon  it  by  the  plaintiff. 
But  as  bills  are  often  of  a  complicated  nature,  and  contain  various  matter,  a 
man  may  plead  as  to  part,  demur  as  to  part,  and  answer  to  the  residue.  But 
no  exceptions  to  formal  minMh'ae  in  the  pleadings  will  be  here  allowed;  for 
the  parties  are  at  Liberty  on  the  discovery  of  any  errors  in  fornr.  to  amend  them. 

"An  answer  is  the  most  usual  defence  that  is  made  to  a  plaintiff's  bill. 
It  is  given  in  upon  oath  :  but  where  there  are  amicable  defendants,  their 
answer  is  usually  taken  without  oath  by  consent  of  the  plaintiff.  This  me- 
thod of  proceeding  is  taken  from  the  ecclesiastical  courts,  like  the  rest  of 
the  practice  in  chancery  :  for  there,  in  almost  every  case,  the  plaintiff  may 
demand  the  oath  of  his  adversary  in  supply  of  proof. 

"  Yet  if  in  the  bill  any  question  be  put  that  tends  to  the  discovery  of 
any  crime,  the  defendant  may  thereupon  demur,  as  was  before  observed, 
and  may  refuse  to  answer. 

"  An  answer  must  be  signed  by  counsel,  and  must  either  deny  or  confess 
all  the  material  parts  of  the  bill;  or  it  may  confess  and  avoid,  that  is,  justi- 
fy or  palliate  the  facts.  If  one  of  these  is  not  done,  the  answer  may  be 
excepted  to  for  insufficiency,  and  the  defendant  be  compelled  to  put  in  a 
more  sufficient  answer.  A  defendant  cannot  pray  any  thing  in  this  his  an- 
swer, but  to  be  dismissed  the  court ;  if  he  has  any  relief  to  pray  against  the 
])laintiff,  he  must  do  it  by  an  original  bill  of  his  own,  which  is  called  a  crosS" 
bill. 

"  After  answer  put  in,  the  plaintiff  upon  payment  of  costs  may  amend 
his  bill,  either  by  adding  new  parties,  or  new  matter,  or  both,  upon  the  new 
lights  given  him  by  the  defendant ;  and  the  defendant  is  obliged  to  answer 
afresh  to  such  amended  bill.  But  this  must  be  before  the  plaintiff  has  replied 
to  the  defendant's  answer,  whereby  the  cause  is  at  issue ;  for  afterwards,  if 
new  matter  arises  which  did  not  exist  before,  he  must  set  it  forth  by  a  sup- 
plemental-bill. There  may  be  also  a  bill  of  revivor  when  the  suit  is  abated 
by  the  death  of  any  of  the  parties,  in  order  to  set  the  proceedings  again  in 
motion,  without  which  they  remain  at  a  stand.  And  there  is  likewise  a  bill 
of  interpleader ;  where  a  person  who  owes  a  debt  or  rent  to  one  of  the 
parties  in  suit,  but  till  the  determination  of  it  he  knows  not  to  which,  de- 
sires that  they  may  interplead,  that  he  may  be  safe  in  the  payment.  In  this 
last  case  it  is  usual  to  order  the  money  to  be  paid  into  court  for  the  benefit  of 
such  of  the  parties  to  whom,  upon  hearing,  the  court  shall  decree  it  to  be 
due.  But  this  depends  upon  circumstances  ;  and  the  plaintiff  must  also 
annex  an  affidavit  to  his  bill,  swearing  that  he  does  not  collude  with  either 
of  the  parties. 

"  If  the  plaintiff  finds  sufficient  matter  confessed  in  the  defendant's  an- 
swer to  ground  a  decree  upon,  he  may  proceed  to  the  hearing  of  the  cause 
upon  bill  and  answer  only.  But  in  that  case  he  must  take  the  defendant's 
answer  to  be  true  in  every  point.  Otherwise,  the  course  is  for  the  plaintiff 
to  reply  generally  to  the  answer,  averring  his  bill  to  be  true,  certain,  and 
sufficient,  and  the  defendant's  answer  to  be  directly  the  reverse  ;*  which  ha 

*If  the  plaiiuiffdeems  the  answer  insufficient  he  may  except  to  It  (before  he  enters  a  replication,) 
and  upon  poiniinj;  out  the  supposed  delecl,  tiie  court  examines  whether  it  be  or  be  not  defective.  If 
adjudged  insufficieiit,  the  defendant  Is  ordered  to  put  in  a  belter  answer,  which  if  he  docs  not  withia 
the  time  required,  the  bill  is  as  to  that  matter  taken  pro  con/isso. 


500  EQUITY  PRACTICE,  [  book  3. 

is  ready  to  prove  as  the  court  shall  award  :  upon  which  the  defendant  re- 
joins, averring  the  like  on  his  side  ;  which  is  joining  issue  upon  the  fact* 
in  dispute.     To  prove  which  facts  is  the  next  concern." 

This  is  done  by  examination  of  witnesses,  and  taking  their  depositions 
in  writing,  according  to  the  manner  of  the  civil  law.  And  for  that  purpose 
a  commission  formerly  issued,  but  even  that  is  dispensed  with  by  a  recent 
act  where  the  deposition  is  taken  within  the  state.  Sess.  Acts,  1827,  ch. 
26.  It  may  be  taken  either  before  one  of  the  commissioners  of  the  court, 
(1  R.  C.  ch.  66,  §  39,  40,)  or  a  notary  public,  (Sess.  Acts,  1822,  ch.  39,) 
or  before  two  justices  of  the  peace.  The  witness  is  brought  before  them 
by  subpoena.  The  questions  are  propounded  to  the  witness,  and  with  his 
answers  are  reduced  to  writing  by  the  commissioner  or  other  person  taking 
the  deposition ;  and  this  duty  ought  not  to  be  performed  by  any  counsel 
in  the  cause,  or  the  depositions  will  be  suppressed.  2  Mad.  314.  2  Dic- 
kens, 563.  The  interrogatories  must  be  short  and  pertinent ;  not  leading 
ones;  (as  "did  not  you  see  this,  or,  did  not  you  hear  that?")  for  if  they 
be  such,  the  depositions  taken  thereon  will  be  suppressed  and  not  suffered 
to  be  read  ;  or  if  only  one  question  is  leading,  that  will  be  suppressed  and 
the  rest  of  the  deposition  read.  2  Mad.  313.  In  like  manner,  if  the  de- 
position is  prepared  beforehand,  it  is  generally  a  fatal  objection,  though 
where  the  witness  cannot  again  be  examined,  the  court  may  have  recourse 
to  that  which  has  been  thus  irregularly  taken.  Where  a  witness  resides 
out  of  the  commonwealth,  commissions  issue  according  to  the  special  pro- 
visions of  1  R.  C.  ch.  66,  §  104,  to  which  the  student  will  turn. 

The  depositions  thus  taken  by  the  commissioner  (or  other  person  autho- 
rized) are  enclosed  by  him,  sealed  up.  to  the  clerk  of  the  court  of  chance- 
ry, by  whom  they  are  immediately  broken  open,  and  are  subject  to  the  free 
inspection  of  the  parties  and  their  counsel,  instead  of  awaiting  an  order  or 
rule  to  pass  publication  as  in  England.  Four  months  are  allowed  for  tak- 
ing depositions  in  those  cases  where  the  plaintiff  replies  to  the  answer  ;  af- 
ter the  lapse  of  which  time  either  party  may  set  the  cause  for  hearing  ;  but 
any  depositions  taken  before  the  hearing,  though  after  that  time  has  elaps- 
ed, may  be  read.  Sess.  Acts,  1822,  ch.  36.  1825,  ch.  15.  When  the 
cause  is  set  for  hearing,  it  is  placed  upon  a  court  docket  and  is  regularly 
called  in  its  turn  and  heard  by  the  court,  which  decides  both  matters  of 
law  and  fact  upon  hearing  the  bill,  answer,  and  proofs,  and  the  arguments 
of  counsel,  without  the  intervention  of  a  jury,  except  where  an  issue  devi- 
savit  vel  non  is  required,  or  an  issue  is  directed  to  satisfy  the  conscience  of 
the  court. 

■'If  witnesses  to  a  disputable  fact  are  old  and  infirm,  it  is  very  usual  to 
file  a  bill  to  perpetuate  the  testimony  of  those  witnesses,  although  no  suit 
is  depending  ;  for,  it  may  be  a  man's  antagonist  only  waits  for  the  death  of 
some  of  them  to  begin  his  suit.  This  is  most  frequent  when  lands  are  de- 
vised by  will  away  from  the  heir  at  law  ;  and  the  devisee,  in  order  to  per- 
petuate the  testimony  of  the  witness  to  such  will,  exhibits  a  bill  in  chance- 
ry against  the  heir,  and  sets  forth  the  will  verbatim  therein,  suggesting  that 
the  heir  is  inclined  to  dispute  its  validity  :  and  then,  the  defendant  having 
answered,  they  proceed  to  issue  as  in  other  cases,  and  examine  the  witnes- 
ses to  the  will ;  after  which  the  cause  is  at  an  end  without  proceeding  to 
any  decree,  no  relief  being  prayed  by  the  bill ;  but  the  heir  is  entitled  to  his 
costs,  even  though  he  contests  the  will.  This  is  what  is  usually  meant  by 
proving  a  will  in  chancery. 

"  When  there  are  cross  causes,  on  a  cross  bill  filed  by  the  defendant  against 
the  plaintiff  in  the  original  cause,  they  are  generally  contrived  to  be  br.ought 
01)  together,  that  the  same  hearing  and  the  same  decree  may  serve  for  both 
of  them.     The  method  of  hearing  causes  in  court  is  usually  this.     The 


CHAP. 


22.]  EQUITY  PRACTICE.  501 


parties  on  both  sides  appearing  by  their  counsel,  the  plaintiffs  counsel 
opens  his  case  by  briefly  stating  it,  with  the  contents  of  the  bill,  answer, 
and  depositions;  pointing  out  distinctly  the  matter  in  issue,  and  the  proofs 
relied  on  upon  his  side,  and  sustaining  his  cause  by  such  arguments  as  he 
deems  pertinent.  After  him,  the  defendant's  counsel  presents  his  case  in 
like  manner,  and  the  plaintiffs  counsel  is  heard  in  reply.  When  all  are 
heard  the  chancellor  takes  the  papers  to  his  chambers,  and  when  he  has 
sufficiently  deliberated,  he  pronounces  his  decree.  Of  its  principles  he 
makes  a  short  note  on  the  papers,  and  the  counsel  of  the  party  prevailing 
draws  up  the  decree  in  the  proper  form,  according  to  the  principles  indi- 
cated by  the  chancellor's  opinion. 

"The  chancellor's  decree  is  either  inlerloculory  ox  final.  It  very  seldom 
happens  that  the  first  decree  can  be  final,  or  conclude  the  cause  ;  for  if  any 
matter  of  fact  is  strongly  controverted,  this  court  is  so  sensible  of  the  defi- 
ciency of  trial  by  written  depositions,  that  it  will  not  bind  the  parties  there- 
by, but  usually  directs  the  matter  to  be  tried  by  jury ;  especially  such  im- 
portant facts  as  the  validity  of  a  will,  or  whether  A  is  the  heir  at  law  to  B," 
or  whether  a  fraud  has  been  committed  as  alleged  by  the  plaintiff.  In  such 
cases,  therefore,  an  issue  is  directed  by  the  court,  to  be  made  up  and  tried 
by  a  jury,  either  at  its  own  bar  or  at  the  bar  of  any  court  of  law  in  the  com- 
monwealth. This  is  what  is  called  a  feigned  issue.  The  mode  of  pro- 
ceeding herein,  in  England,  is  thus  described  by  Mr.  Blackstone.  "An 
action  is  brought,  wherein  the  plaintiff  by  a  fiction  declares  that  he  laid  a 
wager  of  £b  with  the  defendant,  that  A  was  heir  at  law  to  B;  and  then 
avers  that  he  is  so  ;  and,  therefore,  demands  the  £6.  The  defendant  admits 
the  feigned  wager,  but  avers  that  A  is  not  the  heir  to  B  ;  and  thereupon 
that  issue  is  joined,  which  is  directed  out  of  chancery  to  be  tried  ;  and  thus 
the  verdict  of  the  jurors  at  law  determines  the  fact  for  the  information  of 
the  conscience  of  the  court  of  equity."  With  us  the  proceeding  is  usually 
more  simple.  Most  generally,  the  order  of  the  chancellor  is  produced,  and 
the  jury  is  sworn  to  try  the  questions  submitted  by  it  without  the  formality 
of  any  action  brought,  and  without  declaration,  plea,  or  formal  issue,  and 
the  verdict  rendered  is  certified  from  the  court  of  law  to  the  court  of  chan- 
cery. 

"So  likewise,  if  a  question  of  mere  law  arises  in  the  course  of  a  cause, 
as  whether  by  the  words  of  a  will  an  estate  for  life  or  in  tail  is  created,  or 
whether  a  future  interest  devised  by  a  testator  shall  operate  as  a  remainder  or 
an  executory  devise,"  the  chancellor  is  authorized  by  law,  1  R.  C.  ch.  66, 
§  31,  to  refer  it  to  the  opinion  of  the  general  court,  upon  a  case  stated  for 
that  purpose  ;  wherein  all  the  material  facts  are  admitted,  and  the  point  of 
law  is  submitted  to  their  decision  :  who  thereupon  hear  it  solemnly  argued 
by  counsel  on  both  sides,  and  certify  their  opinion  to  the  chancellor.  And 
upon  such  certificate  the  decree  is  usually  founded.  But  this  power  is  rare- 
ly exercised  by  the  court. 

"  Another  thing  also  retards  the  completion  of  decrees.  Frequently  long 
accounts  are  to  be  settled,  incumbrances  and  debts  to  be  inquired  into,  and 
a  hundred  little  facts  to  be  cleared  up,  before  a  decree  can  do  full  and  suf- 
ficient justice.  These  matters  are  always  by  the  decree  on  the  first  hear- 
ing referred  to  a  master  in  chancery  to  examine;  which  examinations  fre- 
quently last  for  years:  and  then  he  is  to  report  the  fact,  as  it  appears  to 
him,  to  the  court.  This  report  may  be  excepted  to,  disproved,  and  over- 
ruled ;  or  otherwise  is  confirmed,  and  made  absolute,  by  order  of  the  court." 

"  Where  issues,  or  an  account,  or  other  reference  has  been  directed,  and 
the  certificate  of  trial  or  report  of  the  master  or  other  commissioners  is  re- 
turned, the  cause  again  comes  on  for  a  final  hearing  as  to  any  other  matters 
that  remain  to  be  settled,  or  upon  any  matters  of  equity  reserved."     And 


502  EQUITY  PRACTICE.  [  book  3. 

here  it  may  not  be  improper  very  succinctly  to  introduce  again,  for  the  con- 
venience of  the  student,  a  few  general  principles  which  govern  courts  of 
equity  in  deciding  upon  the  facts  of  the  case. 

1.  As  to  the  effect  of  the  answer.  It  is  one  of  the  most  striking  pecu- 
liarities of  a  court  ol'  equity,  that  the  statement  of  the  defendant  upon  oath, 
in  so  far  as  it  is  responsive  to  the  bill,  is  taken  as  evidence  in  his  own  be- 
half. The  common  law  has  adopted  with  the  utmost  strictness,  the  maxim 
that  "nemo  debet  esse  testis  in  sua  propria  causa;"  but  it  is  a  rule  in  all 
cases  in  equity,  that  where  the  answer  positively,  plainly,  and  precisely  de- 
nies the  matter  of  equity  stated  in  the  bill,  and  to  use  the  language  of  the 
books,  "  where  the  answer  is  responsive  to  the  bill,"  it  is  to  be  taken  as  true, 
unless  it  be  contradicted  by  two  witnesses,  or  by  one  witness  and  corrobo- 
rating circumstances.  1  Mad.  338.  See  ]  Call,  224.  1  Wash.  389.  3 
Call,  44.  1  H.  &  M.  537.  6  Wheat.  453,  468.  And  yet  the  bill,  though 
on  oath,  is  no  evidence  for  the  plaintiff.  The  reason  of  the  rule  which  at- 
tributes such  weight  to  the  answer  is,  that  the  plaintiff,  by  appealing  to  the 
defendant's  conscience,  makes  him  a  witness  in  the  cause ;  and  by  his  very 
appeal  to  his  conscience  attributes  to  him  credibility  when  he  is  on  oath. 
If",  therefore,  he  contradicts  his  testimony  by  only  one  witness,  there  is  one 
good  witness  against  another,  so  that  the  scales  of  justice  hang  evenly  ;  and 
when  that  is  the  case  the  plaintiff  fails  ;  for  he  never  can  succeed  unless 
the  scale  preponderates  in  his  favor.  9  Cranch,  IGO.  But  if  a  second 
witness  or  corroborating  circumstances  turn  the  scale,  the  weight  of  the 
answer  being  overbalanced,  the  plaiutifi'  shows  himself  entitled  to  recover. 
Id. 

This  weight  is  attributed,  however,  to  the  answer  of  the  defendant,  only 
where  he  denies  what  is  affirmatively  charged  in  the  bill.  For  where  tho 
answer  asserts  a  right  affirmatively  in  opposition  to  the  plaintiff's  demand, 
the  defendant  is  as  much  bound  to  establish  it  by  indifferent  testimony,  as 
the  plaintiff  to  sustain  his  bill :  1  Wash.  225.  1  Mun.  373,  395.  2  John. 
<32,  89:  for  the  plaintiff  cannot  prove  a  negative,  and  if  the  affirmation  be 
true,  the  defendant  may  prove  it.  Thus  where  distributees  filed  their  bill 
against  an  executor,  praying  for  a  distribution  of  the  decedent's  estate,  and 
the  executor  swore  his  testator  had  given  hi;H  certain  property,  his  claim 
was  disallowed  for  want  of  proof:  for  otherwise  he  would  swear  himself 
into  a  title  to  part  of  his  testator's  estate.     1  Wash.  224. 

It  has  been  found,  indeed,  a  matter  of  some  difficulty,  to  lay  down  the 
rule  on  this  subject  very  precisely  and  distinctly  ;  for  on  the  one  hand  it  is 
admitted,  that  if  the  matter  alleged  by  the  defendant  in  his  discharge  is  dis- 
tinct matter  of  avoidance,  it  must  be  established  by  evidence  aliunde  or  it 
will  not  be  taken  as  true;  while  on  the  other  it  is  said,  that  if  the  matter  of 
discharge  and  the  matter  admitted  which  would  go  to  charge  the  defendant 
constitute  but  one  substantive  statement  or  allegation,  the  whole  must  be 
taken  together; — a  nicety  utterly  unworthy  of  a  court  of  justice.  The  stu- 
'dent  will  find  the  subject  examined  at  length  in  the  case  of  Hart  vs.  Ten 
Eyck,  2  John.  C.  C.  91. 

There  are  cases,  however,  in  which  the  answer  of  the  defendant  is  in  a 
court  of  equity  disarmed  of  all  its  force,  ot  yields  to  the  superior  weight  of 
even  a  single  witness.  Thus,  the  answer,  if  it  be  evasive,  will  not  prevail 
where  contradicted  even  by  one  witness.  5  Mun.  183.  Or  if  it  be  not 
positive  and  upon  the  knowledge  of  the  defendant,  the  evidence  of  one 
positive  and  credible  witness  will  overthrow  it ;  though,  unless  contradict- 
ed, the  court  usually  believes  what  the  defendant  swears  he  believes,  if  the 
matter  be  responsive.  1  Mad.  325.  But  if  the  answer  be  a  positive  denial 
of  a  fact  charged  in  the  bill,  it  ought  not  to  be  outweighed  by  testimony  not 
equally  positive.     1  H.  &  M.  537. 


CHAP.  22.]  EQUITY  PRACTICE.  503 

Where  the  answer  is  contradicted  in  anyone  or  more  important  particu- 
lars by  adequate  evidence,  (i.  e.  two  witnesses,  or  one  witness  and  corrobo- 
rating circumstances,)  it  is  deprived,  in  all  other  respects,  of  that  weight 
which  is  allowed  to  answers  by  the  rules  of  a  court  of  equity :  for  being 
falsified  in  one  thing,  no  confidence  can  be  placed  in  it  as  to  others  ;  ac- 
cording to  the  maxim  "falsum  in  uno  falsum  in  omnibus.''  And  the  answer 
may  in  itself  contain  the  circumstances  giving  greater  credit  to  the  testimo- 
ny of  the  single  witness  ;  9  Vez.  275.  2  John.  94  ;  or  destroying  its  own 
credibility  ;  as  where  it  is  plainly  contradictory  in  itself. 

Where  the  plaintiff  goes  into  equity  only  on  the  ground  that  he  cannot 
support  his  claim  without  a  discovery  obtained  from  the  defendant,  the  an- 
swer of  the  defendant  is  clearly  entitled  to  credit,  (1  Call,  280,)  and  would 
seem,  indeed,  to  be  conclusive  ;  for  if  the  plaintiff  should  disprove  it,  he 
"  would  prove  himself  out  of  court,"  that  is,  he  would  by  his  own  evidence 
falsify  his  allegation  which  served  as  the  ground  of  jurisdiction.  See  1  Call, 
382.     See  also  what  is  said  arguendo,  6  Mun.  545. 

If  the  plaintiff  does  not  reply  to  the  answer,  but  the  cause  is  set  down 
for  hearing  upon  bill  and  answer  without  replication,  (even  by  consent,  5 
Ran.  577,)  the  answer  is  to  be  taken  in  all  things  as  true,  whether  the  mat- 
ter be  responsive  or  not,  and  whether  it  be  negative  or  affirmative.*  3  Br. 
340.  1  Wash.  162.  5  Mun.  467,  483.  6  Mun.  142.  And  the  reason  is 
not  only  that  the  plaintiff  thereby  intimates  his  admission  of  the  facts,  but 
that  he  takes  away  from  the  defendant  the  opportunity  of  proving  them  t^ 
for  until  replication  neither  party  can  take  out  commissions  to  examine  wit- 
nesses, (except  in  the  case  of  aged  and  infirm  witnesses,  who  may  be  ex- 
amined de  bene  esse,  though  even  these  must  be  examined  over  again  in 
chief,  if  they  can  be  procured  after  commissions  are  awarded.) 

If  the  defendant  sets  down  the  cause  upon  bill  and  answer  before  a  re- 
plication has  been  filed,  it  is  erroneous  :  he  ought  to  give  a  rule  to  reply.  1 
R.  C.  ch.  66,  §  88.     In  such  case  the  cause  is  sent  back  to  the  rules. 

We  have  already  seen  w'hat  weight  is  attributed  to  the  answers  upon  a 
motion  (before  the  final  hearing)  to  dissolve  an  injunction  awarded  in  the 
cause. 

2.  It  may  next  be  observed,  with  respect  to  answers,  that  the  answer  of 
one  defendant  is  no  evidence  against  another  defendant  in  the  cause,  since 
it  is  against  natural  justice  that  the  statement  of  a  party  should  be  evi- 
dence against  one  who  has  had  no  opportunity  for  cross  examination.  12 
Vez.  355.  And  this  doctrine  is  so  firmly  established,  that  it  would  seem" 
that  the  answer  of  an  assignor  confessing  the  equity  charged  in  the  bill, 
would  not  be  received  as  evidence  against  the  assignee,  who  claims  under 
him  ;  though  his  bare  confessions,  anterior  to  the  assignment,  would  doubt- 
less be  admissible.  See  3  Rand.  214.  3  Mun.  136.  For  a  like  reason,  if 
the  bill  be  taken  pro  confesso  against  a  fraudulent  grantor,  yet  no  inference 
can  be  drawn  (from  that  implied  admission  of  the  fraud)  against  the  gran- 
tee. 2  John.  C.  C.  43.  In  all  such  cases,  the  plaintiff  may  lake  the  evi- 
dence of  one  defendant  upon  due  notice  to  the  others.  But  the  defendant, 
if  examined  to  matters  in  which  he  is  interested,  may  demur.  See  Amb. 
583.  Gilmer,  149.  2  Atk.  228.  In  like  manner,  where  one  defendant 
would  avail  himself  of  the  evidence  of  another,  he  may  do  so  by  having  an 
order  to  take  his  deposition,  saving  all  just  exceptions  ;  though  if  he  is  lia- 
ble to  costs,  that  would  exclude  him.  3  Atk.  401.  The  depositions  in 
these  cases  could  formerly  only  be  taken  regularly,  after  an  order  for  that 
purpose  ;  2  Mad.  316 ;  they  may  now  be  taken  without  such  order,  but 
subject  to  all  just  exceptions.     Sess.  Acts,  1825,  ch.  15,  §>  9. 

*  U'ant  of  rcplicalion  is  no  longer  rrror,  if  the  defendant  lias  proceeded  to  exsiiiinc  ultnc?se«.  Siif. 
!o  llic  Uev.  Code,  V2b.  Dcposilions  nwy  lie  taken  by  botli  partiee  as  aeon  a«  the  bill  ii«  filed.  Idem,  132. 


504  EQUITY  PRACfriCE.  [  book  ^. 

3.  A  defendant  may  likewise  take  the  deposition  of  a  plaintiff:  if  he  con- 
sents to  be  examined  ;  2  Mad.  '316 ;  and  a  plaintiff  may  without  the  de- 
fendant's consent  strike  out  a  co-plaintiff,  or  make  him  a  defendant  and  ex- 
amine liim  upon  giving  security  for  costs.     Idem. 

When  the  court  has  made  up  its  opinion  upon  the  case,  if  no  further 
steps  seem  necessary,  a  final  decree  is  rendered  in  the  cause.  And  then, 
and  not  till  then,  the  question  of  costs  is  decided  ;  for  it  is  error  to  decree 
the  costs  of  the  suit  before  a  final  decree,  since  as  long  as  the  case  is  in  fieri, 
it  is  possible  its  aspect  may  be  varied,  so  as  to  change  the  opinion  of  the 
court  on  the  question  of  costs. 

Costs  in  general  follow  the  event  of  the  cause  ;  for  though  it  is  altogether 
in  the  discretion  of  the  court,  whether  to  give  or  refuse  costs,  yet  they  arc 
usually  awarded  to  the  party  substantially  prevailing,  unless  he  has  acted 
oppressively,  or  fraudulently,  or  forfeited  the  favor  of  the  court  by  improper 
conduct.  It  may  not  be  amiss,  however,  to  add  the  following  principles, 
which  have  been  established  principally  by  our  own  tribunals. 

Where  a  demurrer  to  the  jurisdiction,  because  the  jjarty  has  a  remedy  at 
law,  is  sustained,  the  defendant  is  entitled  to  costs.  5  John.  232,  Gregory 
vs.  Reeve.     7  John.  290. 

Costs  are  usually  paid  out  of  the  fund  in  question.  See  7  John.  274.  9 
Vez.  180.     4  John.  608. 

In  cases  of  injunction,  if  the  injunction  be  perpetuated  in  part,  the  com- 
plainant should  not  be  decreed  to  pay  costs;  2  Mun,  289;  for  though  he 
may  owe  something,  yet  if  he  obtain  any  relief  he  is  the  party  substantially 
prevailing  ;  he  shows  there  was  a  necessity  for  his  suit,  and  should  not 
therefore  be  the  sufferer;  in  like  manner,  as  a  party  who  recovers  at  law 
gets  his  costs  though  he  recovers  only  part  of  his  demand.  Hence,  it  is 
the  general  rule  upon  perpetuating  an  injunction  for  part,  to  give  costs  to 
the  complainant  as  he  prevails;  though  in  some  cases,  where  he  has  omit- 
ted to  defend  himself  at  law,  and  has  be,en  guilty  of  laches,  the  court  of 
equity,  while  it  has  given  him  relief,  has  refused  him  costs,, or  decreed  them 
against  him.  See  2  H.  &  M.  10.  4  H.  &.  M.  427.  The  discretion  thus 
exercised,  however,  by  courts  of  equity,  is  under  the  con'trol  of  the  appel- 
late court,  which  will  reverse  its  decree  if  it  deems  the  discretion  improperly 
exerted  for  or  against  the  appellant.  2  Mun.  289.  And  this  is  of  itself 
sufficient  ground  of  reversal,  though  the  decree  be  otherwise  right.  Id. 
But  in  the  case  here  cited,  the  party  appealed  from  the  other  parts  of  the 
decree :  which  it  is  material  to  observe  ;  for  it  is  not  of  itself  sufficient 
ground  of  appeal  that  costs  have  been  erroneously  decreed.     3  Rand.  165. 

The  law  of  costs  on  bills  to  foreclose  and  redeem  is  stated  under  the 
head  of  mortgages.     See  I  W.  125.     3  Mun.  66. 

The  heirs  of  a  vendor  who  are  sued  for  a  conveyance  by  bill  in  equity, 
ought  not  to  be  compelled  to  pay  costs.  4  Mun.  140.  Nor  ought  costs  to 
be  given  against  a  complainant  to  parties  erroneously  made  so  by  the  court's 
direction.     5  Mun.  87.     Interest  is  not  allowed  upon  costs.     2  Mun.  46. 

When  the  final  decree  has  been  rendered  in  the  cause,  the  party  prevail- 
ing may  enforce  it  either  by  the  remedies  known  to  the  English  practice; 
or  by  ordinary  execution  where  money  is  decreed ;  our  statute  law  having 
authorized  executions  to  issue  upon  decrees  in  chancery,  in  the  same  man- 
ner as  upon  judgments  at  law.  But  where  money  is  not  decreed,  but  an 
act  is  required  to  be  done  by  the  party  against  whom  the  decree  is  render- 
ed, it  is  necessary  to  resort  to  the  original  remedy  by  attachment  for  not 
performing  the  decree.  To  effect  this,  a  copy  of  the  decree  must  be  duly 
served  upon  the  party,  and  a  transcript  under  the  hand  of  the  clerk  of  the 
court,  ought  to  be  shewn  or  offered  to  be  shewn  him,  and  a  compliance 
with  the  decree  should  be  demanded.     Upon  refusal  and  affidavit  of  that 


ciiAP.  22.]  EQUITY   PRACTICE.  505 

fact  a  rule  is  awarded  upon  the  party,  to  shew  cause  why  he  should  not  b6 
attached  for  disobedience  of  the  order.  If  upon  the  return  of  the  rule  he 
shews  no  cause,  an  attachment  issues,  and  he  is  committed  to  prison  until 
he  performs  the  decree. 

If  either  party  thinks  himself  aggrieved  by  the  decree  he  may  petition  the 
chancellor  for  a  rehearing,  at  any  time  before  the  end  of  tlie  term  at  which 
the  final  decree  is  rendered. 

"  Every  petition  for  a  rehearing  must  be  signed  by  counsel  of  character, 
usually  such  as  have  been  concerned  in  the  cause,  certifying  that  they  ap- 
prehend the  cause  is  proper  to  be  reheard.  And  upon  the  rehearing,  all 
the  evidence  taken  in  the  cause,  whether  read  before  or  not,  is  now  admit- 
ted to  be  read  ;  because  it  is  the  decree"  of  the  chancellor  himself,  who  only 
now  sits  to  hear  reasons  why  it  should  not  be  enrolled  and  perfected ;  "  at 
which  time  all  omissions  of  either  evidence  or  argument  may  be  supplied. 
But  after  a  final  decree  has  been  rendered  and  the  term  is  past,  (which  an- 
swers to  signing  and  enrolling  in  the  English  practice,)  the  decree  cannot 
be  reheard  or  rectified  but  by  bill  of  review  in  the  court  of  chancery,  or  ap- 
peal to  the  court  of  appeals. 

"  A  bill  of  review  may  be  had  upon  apparent  error  in  judgment,  appear- 
ing on  the  face  of  the  decree ;  or,  by  special  leave  of  the  court,  upon  oath 
made  of  the  discovery  of  new  matter  or  evidence,  which  could  not  possibly 
be  had  or  used  at  the  time  when  the  decree  passed.  But  no  new  evidence 
or  matter  then  in  the  knowledge  of  the  parties,  and  which  might  have  been 
used  before,  shall  be  a  sufficient  ground  for  a  bill  of  review." 

An  appeal  to  the  court  of  appeals  is  the  last  resort  of  the  party  for  the 
correction  of  the  errors  of  the  inferior  tribunal.  This  is  allowed  under  va- 
rious regulations  to  be  found  in  1  R.  C.  ch.  66,  §  51,  54,  57.* 

On  the  trial  of  appeals  no  new  evidence  is  admitted  ;  for  it  is  a  practice 
unknown  to  our  law,  (though  constantly  followed  in  the  spiritual  courts,) 
when  a  superior  court  is  reviewing  the  sentence  of  an  inferior,  to  examine 
the  justice  of  the  former  decree  by  evidence  that  was  never  produced  be- 
low. And  thus  much  for  the  general  method  of  proceeding  in  the  courts 
o(  equity."! 

"As  to  appeals,  see  the  provisions  of  the  act  of  1030,  cli.  II,  passed  since  the  first  edition  of  this 
work. 

By  a  rule  of  court,  Oct.  1811,  where  there  is  no  error  as  to  the  appellant,  but  tliere  is  error  as  to' 
the  appellee,  that  error  will  be  correcled  though  he  did  not  appeal.  And  he  recovers  his  COslS  as  the 
party  substantially  prevailing.    1  Wash.  381.    i!  H.  &.  fll.  689.    Gilmer,  230. 

Where  a  general  appeal  is  entered  from  a  decree  in  equity,  one  party  may  come  in  and  move  to 
dismiss  as  to  liiniself.    4  Kan.  611. 

It  is  a  common  practice  for  one  of  several  defendants  in  eq<iit3'  to  pray  an  appeal,  and  the  practice 
would  seem  to  be  sanctioned  by  the  cases,  tsee  2  Leigh,- 108.  C  Mun.87,  97.  This  practice,  howev- 
er, is  very  loose  and  seems  to  lead  to  mischief;  since  thus  the  rights  of  a  defendant,  not  before  the 
appellate  court,  become  the  subject  of  adjudication,  and  sometimes  greatly  to  his  prejudice.  In  the 
Bank  of  Virginia  ^s.  Craig,  the  LSaiik  appealed  from  a  decree  in  favor  Of  Craig,  alleging  that  Hooe, 
(a  co-defendant.)  and  not  the  Bank,  was  responsible  to  Craig's  demand.  Hooe  had  not  appealed  and 
was  not  before  the  appellate  court  by  any  process,  yet  the  decree  as  to  the  Bank  was  reversed  ami 
entered  against  him.    April,  1835.    Legislative  regulation  ot  this  nature  seems  desirable. 

t  It  may  be  proper  to  refer  tlie  student  generally  (o  1  R.  Cell.  C6,  for  the  proceedings  in  caus(^3  iit 
the  superior  conrtsofchancery;  lothe  works  of  Mitford,  Cooper,  and  ftladoc;  to  IlairsIndex,625,foir 
the  rules  of  the  chancery  courts;  and  to  the  same  work,  page  631,  for  the  rules  of  court  for  the  di- 
rection of  its  commissioners  in  making  up  their  accounts  and  reports. 

The  ordinary  commencement  of  a  bill  in  chancery  is  to  this  effect:  "To  the  honorable  William 
Browne,  chancellor  of  the  Williamsburg  District,  respectfully  complaining,  shcwelh  unto  your  honor 
your  orator  A.  B." 

"  That,  &c." 

The  ordinary  commencement  of  an  answer  is  to  this  effect: 

"  The  ans\ver  of  C.  D.  to  a  bill  of  complaint  exhibited  against  him  by  A.  B.  in  the  superior  court 
of  chancery  holden  at  Williamsburg — ■ 

"  This  defendant,  saving  and  reserving  to  himself  all  exceptions  to  the  said  bill,  for  answer  thereto' 
or  to  so  mucli  thereof  as  he  is  advised  it  is  material  for  him  to  answer  unto,  he  answereih  and  saith. 
That,  &c." 

The  answer  terminates  with  a  traverse,  though  this  is  not  in  all  cases  necessary  or  indeed  proper. 
Its  form  is  thus,  "  And  the  said  defendant  denies  alt  fraud,  combination,  and  confederacy  charged  iti 
the  bill,  vAihout  that,  that  there  is  any  other  matter  or  thifig,  in  the  complaii'ant's  bill  contained  (ma-. 

VOL.  2—64 


506  EQUITY  PRACTICE.  [  book  3. 

terial  to  be  answered  to  bj'  this  defendant,  not  herein  and  hereby  well  and  sufficiently  answered, 
avoided,  traversed,  or  denied,)  that  is  true,  to  the  knowledge  and  belief  of  thib  defendant;  all  which 
matters  and  things  he  is  ready  to  aver,  maintain,  and  prove,  as  this  honorable  court  shall  direct,  and 
humbly  prays  to  be  hence  dismissed  with  his  costs  in  tliis  behalf  most  wrongfully  sustained."  The  whole 
of  the  above  is  however  usually  omitted,  except  the  words  in  italics,  and  what  is  left  out  is  supplied 
by  an  "  et  cetera." 

The  affidavit  which  must  always  accompany  the  answer,  and  is  usually  written  on,  or  at  the  foot 
of  it,  is  in  this  form : 

"  Frederick  County,  so. 

"A.  B.  made  oath  before  me,  a  Justice  of  the  Peace  in  and  for  the  said  county,  that  the  matter* 
contained  in  the  foregoing  answer,  so  far  as  they  are  stated  to  be  of  his  own  knowledge,  are  true,  and 
so  far  as  he  has  heard  them  from  others  and  declares  his  belief  of  them,  he  does  believe  them  to  be 
true.    Given  under  my  hand  this —  day  of l&d.  JOHN  WHITE  PAGE." 

The  formal  part  of  a  decree  is  to  this  effect : 
A.  B.')     This  cause  came  on  this day  of 1829,  to  be  heard  on  the  bill,  answer,  exhi- 

vs.  >  bits,  depositions  of  witnesses,  and  report  of  the  commissioner,  to  which  there  is  no  exception, 
C.  D.J  on  consideration  whereof  the  court  is  of  opinion  [here  insert  succinctly  and  clearly  the  opin- 
ion indicated  by  the  notes  of  the  court.]  Whereupon  the  court  doth  adjudge,  order,  and  decree, 
and  it  is  accordingly  hereby  adjudged,  ordered,  and  decreed  [here  insert  the  decree;]  And  it  i» 
further  adjudged,  ordered,  and  decreed,  that  the  complainant  recover  against  the  defendanl  hi&cosls 
by  him  about  hia  suit  in  tliis  behalf  expended. 


ANALYSIS 

OF  THE 

COIttHEXTARIES  ON  THE  I.A1VS  OF  TIRGI]\IA, 

IN  A 

SERIES  OF  QUESTIONS  FOR  THE  USE  OF  THE  STUDENT. 


BOOK   III. 

OF  PRIVATE  WRONGS. 

Chapter  I. — Of  redress  by  the  mere  act  of  the  party. 

1.  Of  redress  by  the  act  of  the  injured  party  only?  Right  of  defence, 
how  far  admitted  ?     How  as  to  defence  of  wife,  child,  master,  or  servant? 

2.  Recaption  or  reprisal,  what  and  when  allowed  ?  How  to  be  exercis- 
ed ?  How  far  may  wrongdoer  complain  of  force  used  in  recaption  ?  Re- 
entry ?  Right  of,  when  allowed  ?  How  to  be  exercised  ?  How  far  can 
the  wrongdoer  complain  of  the  force  ? 

3.  Nuisances  what  ?     What  allowed  as  to  them  ?     How  to  be  abated  ? 

4.  Distress  what  ?  What  the  principal  case  known  to  our  law  ?  For 
what  sort  of  rents  may  there  be  a  distress  ?  Distress  clamage-feasant  what  ? 
What  things  are  not  distrainable  ?  How  as  to  things  fer(B  natures; — or  in 
personal  use  or  occupation  ; — or  in  the  way  of  trade  ; — or  tools  and  uten- 
sils ; — or  straw,  hay,  &c. ; — or  things  fixed  to  the  freehold  ?  How  as  to  stran- 
ger's goods  on — or  off  the  premises — by  English  law — by  our  law  f  How 
as  to  tenant's  goods  removed  from  the  premises — before  expiration  of  the 
lease— or  after  ? 

5.  Distresses  ; — who  may  levy  a  distress  ?  How  was  the  property  dis- 
posed of  by  common  law  ?  How  by  our  statute  ?  What  indulgence  (and 
on  what  terms)  is  allowed  to  the  tenant  by  our  law  ?  [1  R.  C.  ch.  113, 
§  1.]     Proceeding  on  three  months'  replevy  bond  ? 

6.  May  a  distress  be  made  in  the  night  ?  Rule  as  to  distressing  for  an 
entire  duty  ?  Suppose  distress  by  mistake  for  too  little  ?  Law  as  to  exces- 
sive distresses  ?  Rescue,  when  lawful  ?  Wlicn  not  ?  Penalty  ?  Proper- 
ty how  to  be  disposed  of?  In  what  county  to  be  empounded  ?  Pounds 
of  two  kinds  ?     Rules  as  to  them  ?     Duty  of  feeding  animals  distrained  ? 

7.  Suppose  the  tenant  fraudulently  removes  his  property  from  the  pre- 
mises ?  [1  R.  C.  ch.  113.  Sess.  Acts,  1822,  ch.  29,  §  2.]  Law  as  to  dis- 
tresses where  lease  is  determined  ?  [1  R.  C.  ch.  119,  §  20,  21.  Sess.  Acts, 
1822,  ch.  23,  §  6.]     Limitation  to  distresses  ? 

8.  Dainage-feasant — objections  to  the  use  of  this  remedy  ?  Three  months' 
replevy  bond — from  what  time  is  interest  to  run  ?  How  is  the  property  to 
be  sold  if  no  bond  given  ?  Effect  of  the  bond  ?  When  to  be  returned  ? 
What  should  it  recite  ?  Remedy  on  it?  What  remedy,  though  the  bond 
be  not  good  as  a  statutory  bond  ?     Commissions  ? 


2  ANALYSIS  OF  [book  3, 

9.  Replevin  what?  Effect  of  it?  Suppose  the  lonrait  fails,  what  was 
the  course  of  the  common  law?  What  by  ours  ?  Suppose  a  distress  is 
proceeded  in  irregularly,  how  is  the  distrainor  considered  ab  initio  ? 

10.  Interest  upon  rent— former  doctrines  ?  How  is  the  doctrine  now  ? 
Suppose  there  was  always  sufficient  distress  on  the  premises?  What  is 
now  the  law  as  to  interest  in  case  of  replevin  ? 

11.  Distresses  how  barred  by  time  ?  Is  there  any  saving?  How  as  to 
debt  for  rent?  Or  Covenant?  Apportionment,  by  whom  and  how  made? 
Grantee  of  part  of  a  rent,  how  may  he  distrain  ?  Why  cannot  the  tenant 
complain  ? 

12.  Suppose  the  distress  is  for  two  little,  what  are  the  landlord's  remedies  ? 
How  if  he  demand  too  much  in  debt,  or  covenant,  or  by  distress  ?  How 
liable  if  distress  is  excessive  ? 

13.  As  to  remedies  of  different  parties  ; — Lessor's  when  he  has  parted 
with  the  reversion  ; — Executor's  and  administrator's  ?  How  as  to  them  af- 
ter lease  determined?  How  as  to  covenant,  or  re-entry — or  assumpsit? 
How  as  to  rent  accrued  after  testator's  death,  if  the  reversion  be  a  chattel—- 
or  a  freehold  ?     How  as  to  attachment  ? 

14.  Heirs'  remedy  ; — where  they  are  parceners  how  must  they  avow  ? 
Husband  in  right  of  his  wife  ;  as  to  rents  due-=-or  not  due  at  wife's  death  ? 
How  should  he  avow  if  he  distrains  during  the  coverture  for  rent  due  be- 
fore—or after  marriage  ? 

15.  Assignees,  their  remedies  at  common  law  ; — by  statute  ?  Effect  of 
assignment  on  assignor's  rights  ?  Or  remedies  ?  Joint-tenants  and  tenants 
in  common  how  to  avow  ? 

16.  Parties  against  whom  there  is  a  remedy  ; — Heirs  ;■ — Executors  and 
administrators?  Effect  of  assignment  in  absolving  the  lessee^ — where  the 
lessor  accepts— or  refuses  to  accept  the  assignee  as  tenant  ?  What  amounts 
to  an  assignment  ?  Lessor's  remedy  against  the  lessee  on  the  express  co- 
venants notwithstanding  assignment  ?  Diflfcrence  herein  between  cove- 
nants express  and  covenants  in  law  ?  Law  as  to  these  matters  if  the  as- 
signee assigijs  ?  Necessity  for  clauses  both  against  underletting  and  as- 
signment ? 

17.  Kinds  of  remedies  ; — Covenant — when  does  it  lie  and  its  advanta- 
ges ; — Debt,  when  did  it  lie  or  not  lie  at  common  law — and  how  by.  statute  ? 
Assumpsit,  where  there  is  an  express — or  only  an  implied  contract  ? 

18.  Attachment,  ])rovisions  as  to  this  remedy  ?  1  R.  C.  ch.  113,  §  9,  and 
act  1,  Jan.  1820.  Remarks  as  to  this  remedy — 1.  As  to  strictly  pursuing 
it.  2.  As  to  the  remedy  on  the  sale  bonds  or  defendant's  recognizance. 
3.   As  to  interpleading. 

19.  Right  of  entry  ;  what  essential  previous  to  entry  ?  Difffcrcnce  here- 
in between  condition  and  limitation  ?  Suppose  demand  is  disi)cnsed  with  ? 
DiflTercnce  between  freehold  and  leasehold  as  to  avoiding  lease  without  en- 
try ?  Demand  ivhcn  to  be  made  ; — for  how  much — and  where  ?  Is  entrij 
necessary  to  ejectment  ?  Waiver  of  forfeiture,  what  amounts  to  ?  E(|uity — 
its  interference  in  case  of  forfeiture  ; — and  rules  on  which  it  acts  ? 

20.  Goods  of  third  person — how  far  and  when  liable  to  distress  ?  Exe- 
cution, what  i»rovidcd  where  there  is  rent  due,  or  not  due  ? 

21.  Replevin,  action  of;  what  are  the  provisions  of  the  act  of  1822,  as  to 
tlie  recovery  of  the  landlord  against  the  tenant  or  third  person,  or  of  the  te- 
nant or  tliird  porson  replevying  against  the  landlord  ?  Actions  for  rents, 
where  to  be  i>r(jught  ?  AV'hen  to  be  tried  ?  Docs  the  motion  on  a  tiirce 
months'  replevy  bf)nd  lie  against  executors?  What  is  the  remedy  ?  Plea 
of  nil  habuit  in  tcncmenlis,  is  it  admissible  for  a  tenant  who  has  enjoyed  the 
properly  ? 

?^2.  Remedies  in  cfpiity  foj-  rent-seek  ? 


CHAF.  4.]  THE  COMMENTARIES.  8 

Chapter  II. — Remedies  by  the  joint  act  of  the  parties. 

1.  Accord  what?  Wliat  essential  to  make  it  a  bar  to  an  action  ?  Pay- 
ment of  a  lesser  sum,  when  a  good  satisfaction  ?  Difference  between  an 
executed  and  executory  agreement  as  to  compositions  with  creditors  ? 

2.  Satisfaction  received  from  one  of  several  persons  liable — its  effect  as 
to  the  others  ?  How  far  can  one  cause  of  action  be  discharged  by  exchang- 
ing it  for  another  ?  Diflerence  between  bonds  and  promissory  notes  herein, 
and  causes  of  that  difference  ? 

3.  Diversity  where  the  satisfaction  is  a  thing  different  from  the  debt  or 
duty  and  where  not?  Where  of  the  same  nature  but  the  circumstances 
different?  Assignments  of  notes,  &c.,  on  a  third  person; — Bills  of  ex- 
change or  drafts,  given  or  accepted  ; — Effect  of  these  as  satisfaction  ? 

4.  Diversity  between  assignment  in  satisfaction  and  a  transfer  as  collatc- 
lal  security  ? 

5.  Accord  and  satisfaction  how  to  be  pleaded  ? 

6.  Arbitration  what?  Who  may  submit ?  Husband?  Executor?  At- 
torney in  fact — or  at  law  ?  Who  bound  by  submission  ?  Who  has  advan- 
tage cf  ? 

7.  What  may  be  submitted  ?  How  as  to  real  property  ?  Award  that  a 
deed  shall  be  made, — how  enforced  ? 

8.  Submission  how  to  be  made  ?  Will  equity  enforce  an  agreement  to 
submit  ?  How  at  law  ?  Is  the  agreement  to  refer  a  bar  to  an  action,  with- 
out an  award?  Submissions  how  made  under  the  act  of  assembly  ?  To 
what  submission  does  the  act  apply  ?  Effect  of  death  or  marriage,  or  re- 
vocation of  submission  ?     Liability  of  party  revoking  ? 

9.  Arbitration  how  not  to  consider  himself?  Suppose  the  arbitrator  be 
akin  to  either?  Umpire  what?  How  appointed?  If  no  provision  for, 
can  equity  supply  defect  ?  What  furnishes  the  rule  as  to  the  appointment 
of  an  umpire  ?  Rule  as  to  the  time  within  which  the  award  must  be  made  ? 
What  number  of  the  arbitrators  must  agree  ?  How  should  they  proceed  ? 
When  are  they  fundi  official  When  is  the  award  void  because  of  a  re- 
ference to  the  opinion  of  a  third  person  ? 

10.  Award  ;  rule  as  to  its  being  without  the  submission  as  to  persons  or 
subject?  When  good  as  to  part  though  void  as  to  the  residue  ?  How  as 
to  its  being  of  part  only  of  the  matter  submitted  ?  How  if  it  award  what 
is  unlawful— impossible-r-unrcasonable — of  no  profit,  or  be  uncertain  or  not 
final  or  not  mutual  ?  Modern  doctrine  as  to  mutuality  ; — and  as  to  constru- 
ing awards  ?  Form  of  the  award?  Performance  what  good  ?  How  en- 
forced at  law  or  in  equity  ? 

11.  Objections  to  awards — on  account  of  the  arbitrators  or  their  conduct? 
On  account  of  the  award  itself?  Rules  as  to  this  ?  Objections  on  account 
of  the  conduct  of  the  parties  ?  Relief  how  obtained  against  an  erroneous 
award  ?  In  cases  of  alleged  mistake  of  arbitrators  what  is  the  course  of 
decision  ? 

Chapter  III. — Redress  by  mere  operation  of  law. 

1.  Retainer  what  ?  Law  of  this  subject  ?  Remitter  what?  Law  of  this 
subject  ? 

Chapter  IV. — Of  Courts. 

1.  Does  the  extra-judicial  remedy  of  a  party  exclude  his  remedy  by  suit? 

2.  Court  how  defined  ?  How  divided?  What  is  the  maxim  as  to  the 
verity  of  records  ?  Existence  of  record  how  tried  ?  Mistakes  how  amend- 
ed ?     What  in  England  constitutes  a  court  of  record  ? 


4  ANALYSIS  OF  [  BOOK  3. 

3.  Constituent  parts  of  a  court?  Define  them  ?  Attorney  at  law  ;  what 
comprehended  in  Virginia  liereby  ?  License  how  obtained  ?  Who  may 
have  the  benefit  of  counsel  in  Virginia  ?  How  retained  in  England  ; — 
how  here  ?  Attorney's  authority  over  his  client's  cause — extent — duration  ? 
How  liable  for  neglect  of  duty  ?  Misbehaviour  in  office  how  punishable  ? 
Malpractice  what?  Bargains  with  their  clients  how  viewed  in  equity? 
Duties  of?  May  he  as  a  witness  disclose  his  client's  secrets  or  produce 
his  papers  ?  Rights  of  counsel  ?  Lien  for  fees  ?  How  far  affected  by 
equitable  right  of  set-off  ? 

Chapter  V. —  Wrongs  and  their  remedies  respecting  the  rights  of  persons. 

1.  Actions — personal — real — mixed;  define  them.  Injuries  how  prima- 
rily divided  ?  Injuries  affecting  personal  security  what  ?  Threats  when  ac- 
tionable? Assault  what?  Battery?  When  justifiable,  in  self-defence — in 
exercise  of  office  ?  How  to  be  pleaded  ?  Mayhem  what  by  common  law 
— and  by  statute  ?     Civil  remedy  for  ? 

2.  Suppose  the  act  lawful,  is  the  assault  or  battery  actionable  and  when  ? 
Suppose  the  act  unlawful  or  without  due  care  but  the  injury  not  wilful? 
Suppose  a  fight  by  consent  ?  AV'hen  is  case  or  trespass  the  proper  remedy  ? 
Suppose  assault  and  battery  both  charged  and  the  assault  only  proved  ? 

3.  Rules  as  to  the  defence  of  wife,  child,  &c.  ?  Rules  as  to  defence  of 
goods  and  possession  ?  Request  when  and  when  not  necessary  ?  What 
force  may  be  used  ?  How  to  be  pleaded  ?  Suppose  an  arrest  by  an  officer 
under  the  order  of  a  competent  authority?  What  violence  may  he  use? 
Case  of  seamen  ?     Of  a  father  or  schoolmaster  ? 

4.  Is  public  prosecution  a  bar  to  private  suit  ?  EflTect  of  it  nevertheless, 
as  to  the  damages  ?  Declaration  ;  how  if  there  are  several  assaults  charg- 
ed in  the  same  court  ?  Suppose  one  of  them  justified  by  plea,  what  ought 
the  plaintiff  to  do  ?  Is  the  day  laid  material  ?  When  may  the  place  be 
material  ?  Declaring  with  a  quodcum  ;  what  ?  Is  it  good — or  cured  by  ver- 
dict ? 

5.  Battery  by  several, — suit  how  brought?  If  jointly  how  may  they 
plead?  When  it  is  advisable  to  plead  separately?  Can  one  be  acquitted 
and  the  other  found  guilty  ?  Can  he  who  is  acquitted  then  be  a  witness  ? 
Damages  should  they  be  joint  or  several  ?  How  as  to  a  fine  in  a  criminal 
prosecution  ?  Where  there  are  several  defendants  how  does  the  trial  pro- 
ceed in  England — with  us  ?  Suppose  the  several  juries  give  damages  of 
different  amounts  ?  Suppose  judgment  taken  against  one  or  release  to  one 
— its  effect  as  to  the  others  ? 

6.  Husband  and  wife  when  to  be  joined  as  plaintiffs  or  defendants  in  this 
action  ? 

7.  What  may  be  laid  as  an  aggravation  ?  General  issue  what  ?  What 
special  pleas  ?  Son  assault  de  mesne  what  ?  Can  justification  be  given  in 
evidence  under  the  general  issue  ?  How  as  to  provocation  ?  Replication 
de  injuria  sua,  &c."  to  son  assault  de  mesne  what? 

8.  Can  defendant  plead  more  than  one  plea ;  or  plead  and  demur  to  the 
same  count  or  plead  inconsistent  pleas?  Is  conviction  or  confession  on 
indictment,  evidence  in  the  civil  action  ?  If  the  damages  recovered  do  not 
exceed  what  sum  — in  the  superior  court — in  the  county  court — how  as  to 
costs?     Suppose  one  acquitted — how  as  to  his  costs  ? 

9.  Injuries  affecting  health  ? — case  of  physician  ?  Difference  between 
trespass  and  case  ?  The  latter  why  so  called  ?  When  is  trespass  and  when 
is  case  the  proper  remedy  ? 

10.  Injuries  to  reputation  how  divided?  What  words  at  common  law 
were  in  themselves  actionable?     What  imputation  of  crime — or  disease  or 


ciiAr.  5.]  THE  COMMENTARIES.  5 

dishonesty  and  unfitness  for  office  or  want  of  professional  integrity  or  abili- 
ty ?  How  are  words  not  actionable  in  tlienisclvcs,  if  there  be  special  da- 
mage ?  How  to  be  laid  in  such  case  ?  "What  is  the  law  of  Virginia  as  to 
actionable  words  ? 

11.  In  what  sense  are  defamatory  words  now  understood  ?  How  former- 
ly ?  Can  a  joint  action  lie  against  two  for  speaking  the  same  words  ?  How 
in  case  of  slander  by  a.  feme  covert!  Suppose  the  declaration  be  entirely 
by  way  of  recital?  How  would  it  now  be  after  a  verdict?  How  before 
1819  ?  Inuendo,  its  use,  object,  and  extent  ?  Colloquhan  when  and  why  ne- 
cessary ? 

12.  What  is  the  general  issue?  Can  matter  of  justification  be  offered 
under  it?  Justification  how  to  be  pleaded  ?  What  arc  justifications  ?  How 
when  the  party  gives  up  his  author?  Sup])0se  the  defendant  was  insane 
when  he  spoke  the  words  ?  What  other  special  pleas  are  there  in  this  ac- 
tion ? 

13.  Suppose  the  substance  of  the  words  only  proved  ; — or  only  part  of 
them  ; — or  that  they  were  spoken  to  the  face  instead  of  behind  the  back — 
or  interrogatively  instead  of  affirmatively  ?  Suppose  plaintiff  lays  special 
damage  and  fails  in  proof  of  it  ? 

14.  Is  evidence  proper  to  be  introduced  by  plaintiffof  other  expressions 
of  ill  will  by  defendant ; — or  of  his  own  good  character  ?  Can  defendant 
give  evidence  of  plaintiff's  having  first  slandered  him  ; — or  of  his  general 
bad  character — and  in  what  regard  ; — or  of  particular  acts  not  specially 
pleaded  ?  Or  circumstances  of  suspicion  not  amounting  to  actual  proof? 
What  course  is  best  in  this  last  case  ? 

15.  How  is  the  verdict  in  slander  ?  When  will  the  plaintiff  recover  no 
costs  though  he  recovers  a  verdict  ? 

16.  Written  libels.  May  words  not  actionable  be  libellous  if  reduced 
to  writing  ?  Reason  of  the  difference  ?  What  is  libellous  ?  What  amounts 
to  publication  ?  [Chitty.]  Can  the  defendant  plead  the  truth  in  justifica- 
tion? How  is  it  in  a  criminal  prosecution  ?  Suppose  the  person  libelled 
be  a  public  officer  or  a  candidate  for  office? 

17.  Malicious  prosecution  ;  in  what  does  this  injury  consist?  What  the 
remedies  ?  Difference  between  indictment  for  a  conspiracy  ;  an  action  for 
a  conspiracy; — and  action  on  the  case  in  the  nature  of  a  conspiracy  and 
action  on  the  case  for  malicious  prosecution  ?  Which  the  usual  remedy  ? 
In  what  cases  does  case  for  malicious  prosecution  lie  ?     What  must  appear? 

18.  What  inferred  from  want  of  propable  cause?  Is  the  question  of  pro- 
bable cause  matter  for  the  court  or  jury  ?  Or  is  it  a  mixed  question  ?  How 
may  it  be  brought  before  the  court  ?  What  essential  to  be  stated  in  the  de- 
claration ?     How  as  to  the  words  "  without  probable  cause  "  ? 

19.  What  proof  must  plaintiff  offer?  On  whom  is  the  onus  probanda 
Is  a  copy  of  the  record  of  prosecution  in  all  cases  granted  ?  Distinction 
herein  ?  Suppose  it  be  obtained  without  leave  ?  How  is  this  matter  prac- 
tically in  Virginia  ? 

20.  What  evidence  may  defendant  produce?  How  is  the  verdict  if  the 
jury  find  for  the  plaintifi"? 

21.  Homine  replegiando  :  does  it  exist  with  us  ?  Habeas  corpus,  what? 
Habeas  corpus  ad  respondendum  ; — ad  testificandum — ad  faciendum  et  re- 
cipiendum ?     The  great  writ  of  habeas  corpus  1 

22.  What  is  the  name  of  the  great  writ  of  habeas  corpus  1  Who  is  en- 
titled to  it?  Was  the  habeas  corpus  act  always  as  comprehensive  ?  Who 
may  apply  for  the  writ  and  how  ?  What  did  the  statute,  ch.  2,  provide  as 
to  this?  What  does  ours?  Will  the  party's  own  affidavit  suffice;  and  to 
what  purpose  ?  What  must  the  petition  shew  ?  Is  our  law  herein  like  the 
English  statute?    How  ia  this  clause  to  be  interpreted,  where  the  par- 


6  ANALYSIS  OF  [  book  3-. 

ty  is  bailable  ?  To  whom  must  the  publication  be  directed  ?  In  England  ; — 
in  Virginia  ?  Is  there  a  penalty  for  refusing  by  any  former  or  present  Vir- 
ginia statute  or  by  the  English  statute  ?  Obedience  to  the  writ  how  enfor- 
ced? How  in  vacation?  How  is  it  issued  ;  by  whom  signed  ;  to  whom 
directed  ;  when  returnable  ; — what  bond  may  be  required  ?  Duty  of  per- 
son on  whom  the  writ  is  served?  Time  allowed?  Penalty  for  failure? 
Cause  of  detainer,  how  ought  it  to  be  certified  ?  Is  it  conclusive  ?  Evi- 
dence how  obtained  ?  When  to  be  made  part  of  the  record  ?  Power  of 
appeal,  &.c.  ?  Are  these  privileged  cases  ?  To  what  only  will  the  appel- 
late court  look?  Suppose  the  court  of  appeals  not  in  session?  Is  the 
judgment  final  unless  reversed  ?  What  is  to  be  done  with  ihe  record  ?  To 
what  cases  are  these  writs  usually  applied  ?  Are  they  proper  to  try  a  ne- 
gro's right  to  freedom  ?  What  is  provided  as  to  removal  of  persons  from 
the  custody  of  one  officer  to  another? 

23.  When  the  court  has  heard  the  cause  what  may  be  done  ?  What  pro*- 
vided  as  to  costs?  Suppose  the  party  insolvent?  ^See  as  to  this  subject, 
1  R.  C.  chap.  120.] 

24,  In  what  action  can  a  party  recover  satisfaction  for  a  false  imprison- 
ment? What  satisfaction  does  he  recover?  What  is  an  imprisonment? 
Whence  do  these  complaints  usually  arise  ?  Suppose  from  the  nature  of 
the  case  the  party  is  not  liable  to  arrest  at  all  ?  (e.  g.  an  executor  who  is 
not  sued  for  a  devastavit.)  Suppose  the  party  is  only  privileged  ;  is  the 
officer  liable  at  all; — and  how  is  the  plaintiff  in  the  writ  liable?  Can  tres- 
pass vi  et  amis  lie  for  arrest  under  process  that  is  not  void  ?  Suppose  it  is 
irregular  and  quashed  afterwards — how  is  it  as  to  the  officer  ;  how  as  to 
the  plaintiff?  Suppose  the  court  issuing  the  process  has  no  jurisdiction  ? 
Suppose  a  rightful  imprisonment  is  wrongfully  continued  ?  Are  judicial 
oflicers  liable  for  mistakes  of  judgment?  Suit  against  the  plaintiff  in  the 
process  and  the  officer  jointly,  how  ought  they  to  plead  ?  How  as  to  dama- 
ges and  costs  ? 

Chapter  VI. —  Of  injuries  to  Personal  Property. 

1.  What  statement  of  demand  and  refusal  generally  suffices  in  detinue? 
When  required  to  be  special  ?  How  may  executor,  &.c.  declare  in  detinue? 
What  is  the  general  issue  in  detinue  ?  How  should  the  jury  find  the  values 
and  why?  How  as  to  the  damages  ?  Suppose  the  verdict  omits  to  find  as 
to  part  of  the  articles  ?  Or  as  to  the  value  ?  Or  where  there  are  several 
issues  ?  To  what  time  are  damages  estimated  ?  Can  hires  accruing  pen- 
dente an  appeal  be  recovered  ? 

2.  Suppose  defendant  aliens  pendente  lite  ?  Suppose  judgment  against 
A,  who  before  suit  has  sold  to  B,  will  detinue  be  against  B?  What  is  the 
remedy  ?  After  one  judgment  against  A,  will  another  action  against  him 
for  the  sante  thing  lie?  Suppose  in  case  of  a  slave  he  dies  pending  the 
suit,  whose  loss  is  it?  How  ought  defendant  to  avail  himself  of  the  fact? 
Difference  herein  between  detinue  and  trover? 

3.  Form  of  the  verdict  in  detinue?  How  is  the  judgment?  What  the 
execution  ?  What  the  effect  of  the  distringas  ?  Does  it  take  the  proper- 
ty itself?  What  becomes  of  the  issues  and  profits  ?  Suppose  distringas 
is  returned  executed  without  satisfaction?  Suppose  then  the  plaintiff  can 
not  get  the  property?  Is  any  motion  necessary?  How  is  the  bail  bound? 
What  is  he  empowered  to  do  after  judgment  ?  What  remedy  in  equity  for 
the  specific  property  ?     What  may  a  court  of  chancery  do  before? 

4  Suppose  the  property  is  worth  less  than  $20? 

5.  Trover  and  conversion.  How  different  from  detinue  in  Its  object? 
How  from  trespass  de  bonis  asportatis  ?     Or  trespass  on  the  case  for  negli" 


CHAP.  6.]  THE  COMMENTARIES.  T 

gence  ?  In  whom  is  the  properly  supposed  to  be  by  this  action  1  Suppose 
it  sold  pendente  lite?  Or  that  it  dies?  Effect  of  recovery  in  trover  on  the 
right  of  property  ? 

6.  To  what  cases  is  this  action  applicable?  What  is  the  gist  of  it?  Is 
the  finding  traversable?  Or  the  defendants  having  come  lawfully  into  pos- 
session? Will  special  property  maintain  it  ?  Or  a  title  in  reversion?  May 
bailor  and  bailee  both  have  the  action?  Rule  as  to  this  ?  Joint-tenants 
and  tenants  in  common  how  to  sue?  When  a  plea  in  abatement  good? 
Distinction  between  actions  ex  contractu  and  ex  delicto  ? 

7.  Husband  how  to  sue  in  trover  for  his  wife's  property  ?  Damage  how 
laid?  How  when  she  is  executrix,  &c.?  How  to  be  sued  ?  Joint-tenants, 
&c.  when  can  they  sue  each  other  in  trover?  Will  trover  lie  by  or  against 
executors  and  administrators? 

8.  Must  time  and  place  and  value  be  laid  ? — and  proved  ?  General  issue 
what?  What  evidence  under?  What  should  be  specially  pleaded  ?  Sta- 
tute of  limitations,  when  does  it  begin  to  run  ?  Evidence  for  the  plaintiff;— 
and  defendant  ?  Demand  and  refusal,  what  evidence  of?  Is  it  conclusive  ? 
Why  not?  Damages,  what  the  measure  of?  Suppose  defendant  conceals 
the  goods  ?     Suppose  he  brings  them  into  court  or  delivers  them  to  plaintiff? 

9.  What  remedies  are  given  for  abduction  of  a  wife,  or  in  cases  o{ crim, 
con.?  How  must  the  marriage  be  proved?  What  is  proper  evidence  to 
enhance  damages?  What  may  be  given  in  mitigation  or  even  as  a  bar  to 
the  action  ?     How  if  the  husband  and  wife  live  separate  ? 

10.  What  actions  may  a  father  bring  for  abduction  of  his  child,  or  for 
seducing  his  daughter?  What  is  necessary  to  be  proved  in  the  action  for 
seduction?  Suppose  the  daughter  be  more  than  21  years  of  age  and  does 
not  live  with  him  ?  How  as  to  the  right  to  the  action  of  the  person  with 
whom  she  does  live?  Is  the  daughter  a  good  witness?  Will  new  trials 
be  granted  for  excessive  damages? 

11.  What  are  the  proper  actions  for  beating  or  retaining  a  man's  servant? 
What  in  such  case  must  appear?  Is  the  scienter  material  in  the  case  of  a 
slave  ? 

12.  Replevin  what?  Describe  the  proceedings  in  this  suit  as  at  com- 
mon law  ?  What  was  necessary  to  be  done  to  entitle  the  tenant  to  the 
writ  ?  When  it  issues  what  is  done  with  the  property  distrained  ?  If  the 
tenant  succeeds  what  does  he  recover?  If  the  landlord  succeeds  what  is 
the  judgment  ? 

13.  Nature  of  the  action  1  Declaration,  what  it  should  set  out  ?  Pleas 
to  1  Avowry  what?  Form  of?  Pleas  to  avowry  ?  Who  may  and  ought 
to  join  in?  This  remedy  when  only  advisable?  Landlord  how  otherwise 
liable  ? 

14.  Detinue — nature,  object,  and  requisites  of  this  action  ?  Possession  in 
defendant,  what  sufficient "?  Does  it  lie  where  possession  is  tortious  1  How 
far  and  what  kind  of  property  in  the  goods  is  essential?  Is  possession  at 
some  time  necessary  to  be  proved  in  plaintiff?  How  as  to  value  and  iden- 
tity  of  the  goods?  Declaration,  precision  in,  why  required?  Form  ofl 
How  to  declare  as  to  value  of  several  articles  ?     And  why  1 

15.  May  the  jury  exceed  the  value  laid  7  And  why  ?  Request,  when 
necessary  to  be  specially  slated  ?  Executor  or  administrator,  how  he  must 
declare?     How  be  declared  against? 

16.  Pleas  in  this  action?  How  may  defendant  protect  himself  by  the 
statute  of  limitations  7  Verdict,  how  it  should  find  when  there  are  several 
articles  of  several  values  7  And  why  ?  How  as  to  joint  damages  ?  Hires 
pending  appeal,  whether  recoverable  ?  How  as  to  hires  between  verdict 
and  judgment?     Verdict,  proper  form  of? 

VOL.  2 — 65 


S  ANALYSIS  OF  [  book  3. 

17.  Judgment,  its  effect  against  a  pendente  lite  purchaser  ?  How  to 
proceed  where  the  purchase  was  before  action  brought?  Suppose  a  slave 
sued  for  dies  pending  the  suit,  whose  loss  is  it  ?  How  should  the  defend- 
ant avail  himself  of  the  fact? 

18.  Execution  in  detinue  ?  What  is  the  command  and  effect  of  the  dis- 
tringas ?  Where  do  the  rents  and  profits  go  ?  When  and  how  is  the  dis- 
tringas superseded  1  What  other  executions  may  the  plaintiff  havel  How 
to  be  obtained  ?     Imperfection  of  the  execution  in  detinue? 

19.  Proceedings  against  the  bail  in  detinue  1  Detinue  where  the  pro- 
perty is  worth  not  more  than  $20.  Wager  of  law,  whether  available  now 
in  this  action  ? 

20.  Trover  and  conversion  ;  nature,  objects,  and  requisites  of  this  action  1 
How  it  differs  from  detinue  ?  How  from  trespass  de  bonis  asportatis  1  How 
from  case  for  negligence?  Effect  of  the  character  of  this  action  as  to  the 
property  in  the  thing  ?  Effect  of  a  verdict  for  the  plaintiff  for  the  value  up^- 
on  the  right  of  property? 

21.  Various  cases  to  which  this  action  is  applicable?  Stoppage  in  tran-r 
situ,  and  right  of  lien,  how  tried  by  it?  Lien,  right  of,  to  what  principally 
confined?  Kinds  of?  What  express?  Implied?  General  or  special? 
Is  the  doctrine  of  general  lien  favored?  Cases  of  attorney,  innkeeper,  me- 
chanic ? 

22.  Nature  of  property  this  action  lies  for  ?  Plaintiff's  title  ?  Who  may 
and  must  join  in  ?  Distinction  herein,  between  actions  of  tort  and  con- 
tract ?  Trover  in  the  case  of  baron  and  feme?  Or  wife  executrix ?  Case 
of  joint-tenant  or  tenant  in  common  ?     Trover  by  or  against  executors,  &c.? 

23.  Declaration,  its  requisites  ?  In  case  of  baron  and  feme?  Pleas  to? 
General  issue  ?     Stat.  lim. — when  does  it  begin  to  run? 

24.  Evidence  in  ?  Conversion  how  to  be  supported  ?  Demand  and  re- 
fusal how  coifsidered?  Evidence  for  defendant?  Verdict  for  what?  Da- 
mages how  mjeasured  ?     Modern  rule  as  to  bringing  in  the  goods  7 

25.  Suppose  the  goods  prove  to  be  under  $20  value  ? 

26.  Trespass  vi  et  armis  and  on  the  case,  distinction  between  them  ? 

27.  Trespass  de  bonis  asportatis,  when  it  lies?  Effect  of  a  verdict  for 
the  full  value  on  the  right  of  property? 

28.  Trespass  vi  et  armis,  for  injuries  to  personal  property ;  essentials  to 
this  action?  Special  properly,  whether  sufficient  to  sustain  the  action? 
How  as  to  possession?  Can  bailee  maintain  it?  For  what  species  of  pro- 
perty does  it  lie?  Does  it  lie  in  any  case  where  defendant  comes  lawfully 
into  possession  ?  Effect  of  a  release  to  or  satisfaction  by  one  of  several 
joint  trespassers  ? 

29.  Declaration,  how  should  it  set  forth  the  cause  of  action?  Suppose 
the  charge  is  only  by  way  of  recital  ?  What  is  the  general  issue  in  this  ac- 
tion ?  Other  pleas?  What  is  remarked  as  to  the  evidence  in  suits  against 
joint  trespassers?     As  to  justification  under  execution  ? 

30.  Verdict  how  found?  May  the  jury  sever  in  damages?  Or  acquit 
one  and  find  others  guilty  ?  Can  a  new  trial  be  granted  in  this  case  ?  When 
shall  the  plaintiff  have  no  more  costs  than  damages  ? 

31.  Trespass  on  the  case  ?  Whence  arose  the  phrase  "  action  on  the 
case"  ?  Varieties  of  this  action?  In  what  cases  has  the  law  provided 
specific  remedies  ?  Case  for  consequential  injury,  when  it  lies  ?  For  inju- 
ries to  the  person  ?  Or  to  the  property  ?  By  the  defendant  or  his  servant  ? 
Or  vicious  animals  ?  Or  the  plaintiff  in  the  relation  of  husband,  father,  or 
master?     Against  public  officers  ?     For  irregular  distresses  ? 

32.  Declaration,  how  should  it  set  forth  the  cause  of  action  ?  Pleas  in 
ihia  action?     Verdict,  how  found? 


«HAP.  ?.]  THE  COMMENTARIES.  9 

Chapter  Vll.— Debt. 

1.  Express  contracts,  what  included  in  "?  Debt  what  ?  Action  of,  when 
it  lies  ?  Ditficulties  in  respect  to  indeterminate  contracts,  which  render  thia 
action  unadvisable  in  such  cases  ?  Wager  of  law,  qu.  if  it  etill  exists  ? 
Suppose  the  plaintiff  proves  a  different  contract,  or  for  less  than  his  de- 
mand ?  Suppose  the  contract  proved,  but  part  paid  ?  Why  is  assumpsit 
to  be  preferred  on  simple  contracts  ?  When  debt  will  not  lie  against  an 
Executor  ?  Will  it  lie  against  acceptor  of  a  bill  of  exchange  V  How  as  to 
bail  bonds  with  us  1  When  does  this  action  lie  against  a  sheriff?  Sum- 
mary remedy  against  him  ? 

2.  Declaration,  how  it  should  set  forth  the  cause  of  action  ?  And  the 
consideration  of  the  contract?  When  consideration  presumed?  Form  of 
declaration  ?  Venue,  object  of  1  How  and  when  to  be  laid  under  a  vide- 
licet ?  Jurisdiction,  when  to  be  specially  set  forth  ?  Names  of  parties, 
effect  of  erroneously  setting  them  forth?  Relator,  how  to  be  set  forth? 
Consequence  where  the  sum  or  date  is  misrecited  ?  How  taken  advantage 
of?  How  to  declare  on  a  tobacco  bond  ?  On  a  bond  with  a  penalty?  On 
a  single  bill?  How  and  when  to  demand  interest?  When  allowed  with- 
out demand?  How  to  declare  where  action  is  oil  several  bonds  together  1 
Debet  and  detinet,  when  to  declare  in,  and  when  not  ?  As  against  execu- 
tors ?  Or  heirs?  How  to  declare  whei'e  defendant's  name  is  misspelt? 
Where  there  are  several  defendants?  Profertwhat?  When  and  how  to 
be  made  ?  When  dispensed  with,  and  how  in  such  cases  to  declare  ?  Da- 
mages, object  of  laying?     How  in  action  for  sterling  money? 

3.  Debt  upon  assigned  bond,  form  of  declaring?  In  whose  name?  Oil 
bond  for  payment  by  instalments  what  demanded  ?  How  is  the  judgment 
thereon? 

4.  Pleas  in  this  action?  Nil  debet,  when  proper  ?  General  issue  what? 
Special  non  est  facluinl  How  to  plead  matter  extrinsic  in  avoidance  of  a 
bond?  When  in  such  case  should  you  crave  oyer  and  demur?  Payment 
how  pleaded?  Effect  of  defence  as  to  the  whole  and  a  plea  going  only  to 
part  ?  What  course  should  plaintiff  lake  in  such  case  ?  How  where  de- 
fence is  only  as  to  part  ?  What  must  be  filed  with  plea  of  payment  ?  What 
other  pleas  in  this  action  ? 

5.  Presumption  of  payment  from  length  of  time  ?  What  sufficient  with- 
out evidence  in  aid  ?  What  facts  sustain  presumption  ?  Difference  be- 
tween presumption  of  payment  and  the  bar  of  the  statute  of  limitations'? 
What  facts  rebut  presumption  ? 

6.  Application  of  payments,  rules  as  to  ?  How  particularly  as  to  prin- 
cipal and  interest  ? 

7.  Plea  of  foreign  attachment,  when  it  should  be  in  bar  and  when  in 
abatement?  What  amounts  to  a  restraining  order  in  cases  of  foreign  at- 
tachment? Can  there  be  such  attachment  before  the  debt  is  due  ?  Whefi 
and  how  far  is  defendant  protected,  in  attachment  cases,  from  interest? 

8.  What  is  the  plea  to  debt  on  bond  of  indemnity  ?     Or  to  debt  for  rent  ? 

9.  How  far  is  plea  of  discharge  under  insolvent  laws  valid  ? 

10.  Plea  of  set  off,  what  ?  Object  of  allowing  set  off?  Set  off  how  con- 
sidered ?  Plea  of,  how  considered?  Certainty  necessary  in  ?  Discounts 
Up  to  what  time  allowed  ?  With  what  restrictions  ?  What  set  offs  not  ad- 
mitted? How  as  to  unliquidated  damages?  Is  the  rule  the  same  in  equi- 
ty ?  How  as  to  demands  barred  by  statute  of  limitations  ?  How  as  to 
discounts  against  executors  suing  for  a  debt  due  to  their  testators  /  Are 
set  offs  allowed  where  the  debts  are  not  in  the  same  right  ?  How  as  to 
partnership  and  individual  demands  ?  How  as  to  debts  to  or  from  surviving 
partners?    How  as  to  demands  due  to  defendant's  wife?    Judgments  ho\^ 


10  ANALYSIS  OF  [bookS. 

set  off?  Form  of  plea  of  set  off?  Where  the  sum  is  equal  to,  or  less,  or 
greater  tlian  plaintiff's  demand'?  Liability  for  assigned  bond,  how  set  off 
by  assignee  against  assignor'?  Will  courts  of  equity  permit  discounts  in 
any  case  which  would  be  refused  at  law  ?  Did  set  offs  exist  in  equity  be- 
fore the  statute  ?  Retainer  when  permitted,  on  the  principle  of  bills  quia 
timet  1 

11.  Plea  by  the  heir,  what  proper?  How  is  he  charged'?  In  respect 
of  what?  Heir  of  heir  how  to  be  declared  against?  Must  all  the  heirs  be 
parties?  And  why?  Principles  of  the  action  against  the  heir?  Is  he' 
bound  without  assets  descended  ?  Was  he  personally  responsible  at  law 
before  the  statute?  How  is  it  by  the  statute?  Plea  since  the  statute"? 
Judgment,  effect  of?     Land  descended,  from  what  time  bound  ? 

12.  Effect  of  false  plea  or  omission  to  plead  by  heir?  Creditor's  mode 
of  proceeding  at  common  law  under  different  circumstances?  Alteration 
effected  by  the  statute"?  Best  course  for  the  heir?  What  he  ought  to  con- 
fess? How  one  should  plead  where  his  co-heirs  have  wasted  their  portions  ? 
How  the  judgment  should  be? 

13.  How  may  the  devisee  be  made  Kable  under  the  statute  ?  How  he 
should  plead  ? 

14.  How  is  judgment  to  be  rendered  against  the  heir?  What  execution; 
goes  where  the  judgment  is  against  the  land?  Or  where  it  is  personal, 
against  the  heir?  Is  the  heir  liable  for  rents  and  profits?  What  does  equi- 
ty require  before  it  decrees  a  sale  ?  How  far  are  the  lands  liable  in  the 
hands  of  the  heir? 

15.  Plea  by  executors  and  administrators  what?  iVe  Mn^rwes  executor, 
when  a  proper  plea  ?  What  may  executor  plead  ?  How  he  should  plead  ? 
How  far  chargeable  ?  Phne  administravit,  how  to  be  pleaded"?  What  may 
be  replied  to  plene  ad.  prater  ? 

16.  Pleas  to  an  action  on  assigned  Bond,  what  ? 

17.  What  evidence  must  be  produced  on  the  plea  of  won  esf  factum  f 
Wiiat  exceptions  to  the  rule  requiring  the  subscribing  witness? 

18.  What  evidence  on  the  plea  of  fully  administered  on  the  part  of  the 
plaintiff?  On  the  part  of  the  defendant?  Inventory  and  appraisement 
how  far  and  for  whom  evidence  ?     Exparte  settlement,  how  far  evidence  ? 

19.  Verdict  how  to  be  found  ?  On  simple  contract,  or  single  bill,  or  note  ? 
How  on  bond  in  a  penalty  or  on  bill  penal  ?  How  in  all  these  cases  where 
part  has  been  paid  ?  Judgment  how  to  be  rendered  ?  How  in  case  of  debt 
payable  by  instalments  ?  Verdict  on  plene  administravit,  where  partially  and 
where  fully  supported  ?  Costs  when  verdict  is  for  the  executor,  where  there 
is  but  one  plea  ?  Or  more  pleas  than  one  ?  To  what  time  does  the  judgment 
when  assets  refer?  What  judgment  where  the  demand  is  proved,  but  there 
are  no  assets?     What  remedy  if  assets  afterwards  accrue? 

20.  When  can  costs  be  given  against  executor  plaintiff?  Can  they  be 
levied  of  the  goods  of  executor  defendant?  What  is  done  where  one  of 
two  defendant  executors  has  fully  administered  and  the  other  has  not  ? 
How  should  the  verdict  be  on  plea  of  "  payment  to  assignor"  ? 

Chapter  VIII. —  Covenant. 

1.  Covenant  what?  Action  of,  for  what  it  lies?  Covenant  real  what? 
Action  upon,  how  used  formerly  ?  What  recovered  in  covenant?  Upon 
what  instruments  it  lies  ?     Against,  and  for  whom  ? 

2.  Covenants  how  divided?  Express  what?  Implied  what?  Real  what? 
What  words  constitute  a  covenant  ?  Express  covenant  to  what  extended  ? 
How  they  effect  covenants  in  law  ?  Party  how  bound  to  perform  ?  What 
eovenanta  usual  in  deeds  for  land  ^     To  pay  rent  whether  excused  by  fire. 


ciiAP.  9.]  THE  COMMENTARIES.  11 

&c.  ?  To  save  harmless  what  a  breach  of?  Against  assignment  or  under- 
letting how  broken  ?  Whether  broken  by  levy  of  execution  on  the  lease  ? 
For  repairs  to  what  it  extends  ?  Of  seizin  or  against  incumbrances,  how 
and  when  broken  ?  For  further  assurance,  duties  of  the  parties  under  this- 
covenant  ? 

3.  Will  covenant  lie  on  bond  with  collateral  condition  ?  How  do  you 
declare  in  such  case  ?  How  is  the  verdict  and  judgment  ?  Can  you  in  co- 
venant exceed  the  penalty  of  the  bond?  What  is  the  difference  between  a 
penalty  and  liquidated  damages? 

4.  How  are  covenants  divided  in  reference  to  the  time  of  their  perform- 
ance ?  What  are  dependent  and  what  independent  ?  General  rules  for 
determining  this  ?  What  is  the  modern  rule  for  construing  covenants  iii 
this  regard  ? 

5.  Covenants  how  further  divided  ?  Affirmative  how  broken  ?  Negative 
how  broken  ?     Manner  of  pleading  to  affirmative  and  negative  covenants  ? 

6.  Covenants  how  further  divided?  In  joint  covenants  who  must  join  in 
action  ?  W^hen  parties  to  covenant  may  sever?  Objection  in  either  case 
how  made  ? 

7.  Covenants  real,  who  entitled  to  benefit  of?  If  broken  in  ancestor's 
lifetime  who  must  sue  ?  By  what  covenants  is  the  heir  bound  ?  How  as 
to  the  executor?  Is  a  devisee  chargeable  in  covenant?  How  is  it  best  tOi^ 
proceed  against  him  on  a  bond  for  performance  of  covenants  ? 

8.  How  far  are  assignees  bound  by,  or  entitled  to,  benefit  of  covenants  ? 

9.  Declaration  in  this  action,  rules  respecting  ?  Causes  of  action  how 
to  be  stated  ?  Breach  how  to  be  assigned  ?  Damages  what  amount  should- 
be  laid  ? 

10.  Plea  ;  general  issue  what  ?     Other  pleas  ? 

11.  Evidence  ;  can  the  covenant  be  introduced  if  misrecited  ? 

12.  Verdict  how  found  ?  Measure  of  damages  in  cases  of  covenant  to? 
repair  ?  For  sale  and  delivery  of  stock,  &c.  ?  For  replacing  stock  ?  How 
does  the  rule  differ  from  that  as  to  the  measure  of  damages  in  trover,  &c.  ? 

Chapter  IX. — Assumpsit. 

1.  Assumpsit  what?  For  what  does  the  action  of  assumpsit  lie?  Va- 
rious implied  assumpsits  ?  Quantum  meruit— quantum  valebat,  and  insimul 
computassent ;  explain  these  severally.  For  money  had  and  received,  or 
laid  out  and  expended  ;  explain  these  implied  assumpsits. 

2.  Will  a  consideration  be  implied  from  a  promise  ? 

3.  Assumpsit  how  divided  ?  General  indebitatus,  nature  of?  SpeciaF 
assumpsit,  nature  of? 

4.  On  what  contracts  is  assumpsit  maintainable  ?  General  principles  of 
the  action  ?  Cases  in  which  it  lies  ?  Mistake,  failure  of  consideration, 
void  authority,  extortion  and  fraud,  reversal  of  judgment,  illegal  contract;- 
when  and  where  not  sufficient  grounds  of  this  action?  Can  particeps  cri- 
minis  recover  in  this  action  ?  When  does  the  action  lie  for  fees,  or  reward 
for  labor  ?  Or  for  a  duty  imposed  ?  Or  for  money  paid  in  invitum,  or  at 
the  defendant's  request  ? 

5.  Implied  assumpsits — can  they  exist  when  there  is  an  open  subsisting 
agreement  ?  And  why  not  ?  What  three  classes  of  implied  assumpsit  are 
there  ? 

6.  On  what  express  contracts  will  assumpsit  lie  ?  Suppose  a  contract 
be  sealed  ?  What  contract  implied  on  sales  of  goods  ?  Remedy,  if  title 
be  defective  ?  Auction  sales,  rules  respecting  printed  conditions  of?  Re- 
medy where  there  is  fraud  in  sale  ?  What  must  be  done  by  vendee  ?  In 
sales,  on  whom  is  the  risque  of  delivery  ?    Sale  when  complete  ?    When 


12  '  ANALYSIS  OF  [bookJJ; 

void,  because  of  employment  of  puffers  ?  Is  an  agreement  by  two  not  to 
Lid  against  each  other  vahd  or  void  ?  Rules  as  to  sale  on  credit,  and  re- 
moval of  property  before  security  given  ?     Re-sale,  when  lawful  ? 

7.  Use  and  occupation,  on  what  undertaking  does  it  lie  ?  Is  "  nil  ha-' 
buil  "  a  good  defence. 

8.  What  contracts  will  not  support  assumpsit?  Suppose  payment  for 
defendant  against  his  will  ?  What  not  so  considered  ?  Suppose  service 
done  as  a  voluntary  curtesy  or  in  expectation  of  a  legacy  ?  What  not  con- 
sidered as  a  mere  curtesy  ?  When  plaintiff  may  support  the  action  though 
the  transaction  was  illegal?     When  not? 

9.  Can  the  action  be  sustained  where  the  consideration  arises  out  of  a 
fraudulent  transaction?  Or  is  frivolous,  or  groundless,  or  the  demand  is 
unconscientious  ?  Will  it  lie  on  express  promise,  sustained  by  moral  obli- 
gation ?  Can  implied  promise  be  raised  from  such  obligation?  Will  this 
action  lie  where  there  is  a  specially  ?     Distinctions  upon  this  point? 

10.  Can  a  party  recover  back  what  he  has  voluntarily  paid  ?  Will  the 
action  for  money  had  and  received  lie  for  stock?  Or  where  the  right  can- 
not be  fairly  tried  in  that  form  of  action  ? 

11.  When  will  it  lie  against  an  executor  so  as  to  charge  him  out  of  his 
own  estate  ?     What  promise  is  and  what  is  not  within  the  statute  ? 

12.  AVhether  a  consideration  be  necessary  where  his  promise  is  in  writ- 
ing ?  And  whether  he  is  not  liable  even  without  writing,  where  he  pro- 
mises in  consideration  of  forbearance  ? 

13.  What  cases  are  or  are  not  within  the  clause,  which  respects  a  pro- 
mise to  pay  the  debt  of  another?  Distinctions  on  this  point  ?  What  con- 
sideration necessary  ?     Must  it  be  inserted  in  the  memorandum  ? 

14.  Cases  within  the  clause  respecting  agreements  in  consideration  of 
marriage  ?     Are  promises  to  marry  within  it? 

15.  What  a  sufficient  signing  within  the  statute  ? 

16.  In  what  case  can  one  not  a  party  to  the  agreemen-t  maintain  this  ac-* 
tion  ?  General  rule  as  to  this  matter  ?  Will  the  action  lie  on  mere  gene- 
ral declarations  ? 

-   17.  Factors — when  may  they  maintain  this  action  ?     Exception  ?    What 
lien  has  the  factor  ?     For  what  answerable  ?     How  he  ought  to  sell  ? 

IS.  Masters  and  owners  of  ships,  how  liable  for  general  charges,  repairs, 
and  wages  ?  Seamen's  wages  when  due  ?  When  not  recoverable  ?  Wherr 
forfeited  ?  What  is  provided  by  the  laws  of  the  U.  S.  ?  Law  as  to  wages 
in  letters  of  marque  or  privateers  ? 

19.  By  what  act  or  agreement  a  man  may  be  made  liable  as  a  partner? 
Who  must  join  in  suit  for  partnership  demands  ?  How  where  one  partner 
dies  ? 

20.  Executors;  how  they  may  sue  or  be  sued  in  this  action?  When 
liable  for  costs  ? 

21.  Declaration  in  assumpsit.  Why  is  it  usual  to  join  several  counts  ? 
If  the  contract  be  express,  will  the  general  counts  suffice  ?  Will  indeb.  as- 
sumpsit lie  for  indorsee  of  bill  of  exchange  against  indorser  ? 

22.  What  averments  necessary  where  there  is  a  previous  act  to  be  done 
by  the  plaintiff  ?  Or  a  simultaneous  act  ?  Notice  and  request,  when  and 
when  not  necessary  ?     When  averment  of  readiness  is  not  necessary  ? 

23.  What  is  the  gist  of  this  action  ?  Suppose  no  promise  is  laid  ?  Or 
no  consideration  ?  What  step  should  defendant  always  take,  to  prevent 
the  defects  in  the  declaration  being  cured  by  a  verdict? 

24.  What  are  the  general  counts?  For  what  they  lie  ?  Their  object? 
And  the  difference  between  them?  General  rules  as  to  these  common 
counts  ?  What  mupt  be  filed  with  the  dec.  ?  What  a  sufficient  compliance 
with  the  statute  ?    The  breach  of  promise  how  to  be  laid  ?     Day  of  the 


CHAP.  9.]  THE  COMMENTARIES.  13 

promise,  when  material  ?     When  necessary  to  set  forth  (under  the  statute) 
a  note  in  writing  ? 

25.  Suppose  one  count  faulty,  and  a  general  verdict  ?  How  executor 
ought  to  sue  on  his  own  contract,  respecting  the  estate  ?  What  can  he 
join  in  the  same  action  ?  What  demands  against  him  may  be  joined  ? 
What  may  he  join  in  the  same  action  ? 

26.  Contract  laid,  how  to  be  proved  ?  Dec.  setting  forth  oral  contract, 
how  it  may  be  sustained  ?  Is  there  any  other  distinction  between  agree- 
raents  than  specialty  and  parol  ?  How  to  declare  when  the  promise  is  al- 
ternative ? 

27.  When  plaintiff  may  resort  to  the  general  counts  ?  When  not  ?  Prin- 
ciple of  the  rule  ?  When  contract  is  entire  can  it  be  apportioned  ?  Rule 
as  to  the  allegata  and  probata  ? 

28.  Action  by  or  against  partners,  how  should  it  be  brought?  Omission 
of  one  how  to  be  objected  ?     Difference  herein  between  tort  and  contract? 

29.  What  will  sustain  a  count  of  insimul  computassent  ?  What  evidence 
necessary  though  the  plea  admits  a  debt  but  not  the  quantum  ? 

30.  What  essential  in  the  plea?  Suppose  it  answers  only  part?  Sup- 
pose defendant  pleads  only  as  to  part?  Can  defendant  plead  a  counter- 
mand of  his  promise  ?  How  must  he  avail  himself  of  matter  of  law  in  his 
defence  ? 

31.  Is  accord  and  satisfaction  a  good  plea  ?  How  as  to  payment  ?  What 
must  appear  in  a  plea  of  accord  ? 

32.  Limitations,  how  used  as  a  defence?  What  law  of  limitations  go- 
verns ?  Against  what  demands  does  it  run  ?  Does  it  ever  stop  ?  Does  it 
apply  to  bills  or  notes  ?     Or  for  an  attorney  sued  for  money  collected  ? 

33.  Statute  how  avoided  ?  What  exceptions  to  ?  Law  as  to  merchants' 
accounts  ?  Or  current  accounts  ?  What  is  an  account  stated  ?  Does  the 
exception  only  embrace  actions  of  account  ?  Does  it  embrace  store  accounts 
of  retailers?  Limitation  as  to  them?  What  saving  does  the  statute  con- 
tain ?     Beyond  sea  what  it  means  ?     Who  cannot  plead  the  statute? 

34.  What  are  the  provisions  of  the  act  of  limitations  as  to  executors? 
When  does  the  statute  begin  to  run  ?  What  avoids  it?  How  as  to  a  new 
promise  ?  What  acknowledgment  will  suffice  ?  Does  the  acknowledgment 
constitute  a  new  substantive  cause  of  action,  or  draw  down  the  original  ? 

35.  What  is  the  effect  of  new  promise  by  a  partner  ?  Or  by  executor  as 
k  respects  the  heir  or  administrator  de  bonis  non  ?  Will  a  bill  in  equity  lie 
to  compel  discovery  of  new  promise  ? 

36.  How  may  the  statute  be  avoided  by  suing  out  process  ?  What  is 
meant  by  "journey's  accounts"  ?  What  is  the  effect  of  a  pending  bill  in 
equity  ? 

37.  How  is  the  statute  to  be  pleaded  ?  When  should  the  plea  be  actio 
non  accrevitt     How  fraud  may  be  replied  ? 

38.  Is  the  plea  of  bankruptcy  sustained  by  a  discharge  as  an  insolvent? 

39.  What  is  a  plea  of  tender?  When  proper  ?  How  is  it  to  be  pleaded  ? 
What  the  effects  and  consequences  of  the  plea  ?  What  a  good  tender  ? 
How  to  be  made  ? 

40.  Is  infancy  to  be  pleaded,  or  is  it  evidence  under  the  general  issue  ? 
Plea  of,  how  avoided  ?  What  considered  as  necessaries  ?  Contract  of  in- 
fant how  ratified  at  full  age  ?  How  then  to  be  declared  on  ?  Contract  of, 
when  binding  on  the  other  party  ? 

41.  How  is  the  bar  of  a  former  judgment  to  be  used  ?  What  kind  of 
judgment  is  a  bar?  How  is  pendency  of  a  former  action  to  be  pleaded? 
How  the  plea  of  former  attachment  ?  Or  former  recovery  ?  When  only  is 
this  a  bar  ?     When  matter  of  abatement  only  ?    How  do  you  plead  a  rc^f 


14  ANALYSIS  OF  [book  3. 

lease  or  arbitrament?     Or  alienage  ?     Or  set  off?     What  is  the  general  is- 
sue ?     What  may  be  proved  under  it  ? 

42.  Verdict  how  to  be  found  ?  Where  there  are  several  pleas  ?  Where 
there  is  judgment  by  default,  what  evidence  necessary  on  writ  of  inquiry? 
Plaintiff  when  and  when  not  non-suited  for  want  of  jurisdiction  ? 

43.  When  are  costs  to  be  given  against  executors  or   administrators? 

44.  What  is  the  special  action  on  the  case,  and  out  of  what  did  it  arise  ? 
Give  instances  of  it — in  cases  of  sheriffs,  attorneys,  innkeepers,  mechanics, 
and  others?  What  warranty  is  implied  on  the  sale  of  goods?  What  im- 
plied from  representation  though  no  scienter? 

Chapter  X. —  Of  injuries  to  Real  Property. 

1.  What  are  the  injuries  affecting  real  rights?  What  is  ouster?  By 
what  five  methods  is  ouster  of  the  freehold  effected  ?  What  is  abatement? 
Intrusion?  Disseizen  ?  Disseizen  of  incorporeal  heraditaments  ?  Of  rents? 
What  constitutes  disseizin  of  the  freehold  ?  What  is  discontinuance  ?  De- 
forcement ?  Several  kinds  of ?  The  remedy  for  injury  by  ouster?  How 
enforced?  By  entry  when  ?  And  how  ?  What  is  continual  claim?  En- 
try when  tolled  ?  Exception  when  claimant  is  under  disability  ?  Reason 
for  doctrine  of  tolling  ?  What  necessary  to  complete  title  ?  Forcible  en- 
try or  detainer  how  redressed  ? 

2.  Ejectment,  remedy  by,  what  and  when  proper?  Explain  the  princi- 
ples of  this  fictitious  contrivance  ?  What  is  the  casual  ejector  ?  What 
must  the  defendant  confess  ?  What  must  plaintiff  make  out?  Judgment 
how  rendered  ?     And  what  the  writ  of  possession  ? 

3.  Action  how  commenced  ?  Declaration  and  notice  how  drawn  ?  How 
served  ?  How  to  proceed  on  the  day  to  which  notice  is  given  ?  Common 
order  how  entered  ?  What  particulars  are  to  be  observed  as  to  the  decla- 
ration ?  How  where  several  sue  having  joint  title  ?  How  where  several 
sue  having  several  interests  ?  Who  may  bring  ejectment  and  against  whom 
and  how  many  ? 

4.  What  is  the  plea  in  ejectment  ?  How  is  the  act  of  limitations  a  de- 
fence ?  What  is  that  limitation  at  this  time  ?  Does  it  ever  stop  ?  Can 
disabilities  be  tacked  together?  How  is  it,  where  there  are  two  parceners 
and  only  one  under  disability  ?  How  as  between  trustee  and  c.  q.  t.  ?  How 
as  to  tort  feasors  ?  May  defendant  succeed  by  merely  proving  title  out  of 
the  plaintiff? 

5.  May  plaintiff  recover  on  his  own  length  of  possession  ?  Can  he  re- 
cover by  the  weakness  of  defendant's  title  ?  Can  he  be  barred  by  outstand- 
ing satisfied  term  ?  Can  he  be  called  on  to  prove  defendant's  possession? 
Is  defendant  now  bound  in  England  to  confess  possession  on  the  common 
rule  ?     Does  ejectment  abate  by  death  ? 

6.  What  is  the  verdict?  How  it  should  find  the  land?  Can  plaintiff 
recover  less  than  he  claimed?  What  is  the  form  of  the  judgment  ?  And 
its  effect  ?  Is  it  a  bar  to  another  ejectment  ?  What  is  a  bill  of  peace  ? 
What  are  the  damages  in  ejectment? 

7.  Trespass  for  mesne  jjrofits  how  brought?  What  proof  required  in  ? 
When  proof  of  title  necessary?  Pleas  in  ?  How  may  defendant  protect 
himself  by  the  stat.  of  limitations  ? 

Chapter  XI. — Remedies  for  injuries  to  Real  Property — continued. 

1.  Writ  of  right  what  ?  When  appropriate?  What  at  common  law  was 
demandant  bound  to  allege  ?  Proceedings  in  this  action  in  Virginia  how 
regulated  ?     Who  may  sue  out  writ  of  right  ?     Against  whom  ?     Pleas  for 


CHAP.  12.]  TrtK  COMMENtARIES.  15 

defendant,  who  disclaims?     Judgment  in  such  caec?     How  may  tenant  for 
life  have  aid?    What  provided  as  to  cssoigns,  views,  and  vouchers  ? 

2.  Where  to  be  brought  ?  Form  of  the  writ  ?  How  returnable  and  pro- 
ceeded on  ?  Count,  form  of?  Wliat  observable  as  to  it?  lioundarieshow 
ascertained  and  to  be  set  forth  ?  Whether  demandant  must  prove  scizen  ? 
Different  grades  of  seizin  or  possession  ? 

3.  Plea  or  joinder  of  the  mise  ?  Form  of?  What  is  the  replication? 
Other  pleas  ?  Is  matter  of  abatement  proper  evidence  on  the  trial  of  the 
mise  ?  '  Plea  in  abatement,  how  put  on  ?  What  farther  regulations  adopted 
to  prevent  delay  ?  Can  the  pleadings  be  oral  ?  What  caution  to  be  ob- 
served by  demandant's  counsel. 

4.  May  special  matter  be  given  in  evidence  ?  Who  commences  and 
concludes  ?  What  title  must  demandant  make  out,  and  how  ?  How  may 
defendant  protect  himself?  What  is  the  limitation  now  to  writs  of  right  ? 
Are  mere  squatters  protected  by  the  statute  ? 

5.  Verdict,  form  of?  May  there  be  a  special  verdict?  Or  new  trial? 
What  is  the  form  of  the  judgment  for  demandant  ?  For  tenant  ?  In  case 
of  non-suit  ?     Is  it  a  bar?     What  is  the  proper  execution  ? 

6.  Caveat,  when  ?  Where  it  lies  ?  Omission  to  caveat,  when  relieved 
against  in  equity?  What  provision  recently  enacted  ?  Is  it  retro-active  ? 
Who  only  may  maintain  a  caveat?  What  is  the  effect  of  dismission  of? 
What  the  usual  question  tried  on  caveats  ?  What  entries  are  good  and 
sufficiently  specific  ?  What  is  meant  by  a  general  and  particular  descrip- 
tion ?     Mode  of  proceeding  in  caveats  ? 

7.  What  provisions  have  been  enacted  as  to  repeal  of  patents  ?  Object 
of  the  law  ?  What  must  petitioner  show  ?  And  how  must  he  proceed  ? 
Decree  in  such  case  ?     Limitation  to  such  proceedings  ? 

Chapter  XII. —  Of  Trespass,  Nuisance,  Waste,  6)C. 

1.  What  means  trespass  in  its  enlarged  sense?  What  in  reference  to  lands? 
What  amounts  to?  When  may  j.ury  exceed  the  actual  dam.age?  What 
essential  to  maintain  the  action  ?  What  possession  ?  How  far  is  defend- 
ant liable  for  damage  by  his  cattle  ? 

2.  Suit  where  to  be  brought?  Trespass  how  to  be  charged?  When 
with  a  continuando?  Whether  defendant  may  justify  for  distress,  hunting, 
or  gleaning?  What  justifications  he  may  plead  ?  Or  bars  to  the  action  ? 
Who  considered  trcspnsser  ab  initio?  Plea  of  freehold  in  himself;  what 
does  this  bring  in  question  ?  Is  it  evidence  under  general  issue  ?  What  is 
the  general  issue  ?  What  damages  carry  costs  ?  How  if  trespass  was 
wilful  ? 

3.  What  is  nuisance  ?  Kinds  of,  effecting  corporeal  hereditaments  ?  To 
houses  ?  To  lands  ?  As  to  water  courses  ?  What  length  of  enjoyment  of 
exclusive  privileges  affords  evidence  of  right  ?  Is  the  presumption  conclu- 
sive ?     May  party  injured  abate  the  nuisance  ? 

4.  As  to  incorporeal  hereditaments,  instances  of  nuisance?  What  not 
considered  a  nuisance  ?  What  are  the  remedies  for  a  nuisance  ?  The  pub- 
lic and  private  remedies  ?  When  private  action  lies  for  public  nuisance  ? 
Remedies  by  suit,  effect  of?  How  should  a  party  show  forth,  or  plead  his 
twenty  years'  enjoyment  ? 

5.  Waste  what?  Estrepement  what?  Who  entitled  to  bring  a  writ  of 
waste  ?  What  action  may  remainderman  for  life  bring  where  there  has  been 
waste  ?  Who  may  maintain  the  action  on  the  case  for?  What  is  recover- 
ed in  that  action  ?  What  by  the  writ  of  waste  ?  Judgment  in  this  last, 
how  given  ? 

VOL.  2 — 6G 


16  ANALYSIS  OF  [  BOOTt  3. 

6.  Disturbance,  what  cases  of  exist  with  us  ?  Declaration  in,  what  should 
it  set  forth  ?     Where  right  of  way  is  by  agreement,  how  is  it  to  be  set  forth  ? 

7.  Quo  loarranto ;  nature  of  tliis  remedy  ?  To  what  cases  applicable  ? 
How  judgment  is,  if  rendered  for  defendant?  Or  for  the  crown?  Infor- 
mation in  the  nature  of  quo  warranto,  why  substituted  for  the  old  remedy  ? 

8.  Mandamus  what?  When  is  it  peremptory?  When  it  does  not  lie? 
How  is  it  brought  and  proceeded  in  ?  Does  it  lie  to  compel  the  allowance 
of  a  supersedeas  ? 

9.  Prohibition,  writ  of,  what?  What  is  its  character  and  object?  And  the 
mode  of  proceeding  in?  What  is  the  writ  of  consultation,  and  wheiv 
awarded  ?  How  party  may  defend  himself  in  prohibition  ?  What  is  the 
j^udgment  for  the  plaintiff? 

Chapter  XHI. — 0/  Joinder  of  Actio7is. 

1.  Upon  what  does  the  joinder  in  action  depend  ?  What  the  test  of  pro- 
per joining  ?     What  counts  in  form  ex  contractu  may  be  joined  ?     What  in 

-ibrm  ex  delicto  ?  Can  those  in  form  ex  contractu  be  joined  with  those  ex  de- 
licto? How  far  can  counts  in  one  species  of  action  be  joined  with  counts 
in  another?     When  may  several  rights  of  actions  and  liabilities  be  joined  ? 

2.  How  should  cause  of  action  be  stated  against  several,  whether  in  tort 
or  contract?  When  is  the  wife  properly  a  co-plaintiff?  Can  a  plaintiff 
join  a  demand  as  executor  to  a  demand  in  his  own  right  f  Why  not  ?  How 
where  he  is  defendant?     What  are  the  consequences  of  misjoinder? 

3.  Who  are  proper  parties  to  the  action — in  actions  on  contract  ?  First, 
as  between  the  original  parties  ;  who  are  properly  })laiHtiffs  ?  Who  must 
join  ?  Who  may  join  ?  Secondly,  how  is  it  where  the  contract  has  been 
assigned  ?  Or  part  of  obligees  dead  ?  How  as  to  representatives  of  one  of 
several  obligees,  &c.  who  is  dead  ?  How  as  to  executor  of  executor  ?  How 
in  case  of  feme  covert  ?  What  are  the  consequences  of  mistake  ?  Who 
are  proper  parties  defendant,  as  between  the  original  parties?  Who  must 
be  joined?  Who  may  be  joined  ?  Can  separate  judgment  be  rendered  on 
a  joint  action?  Consequences  of  misjoinder  what?  AVhat  precaution  is 
advised  ? 

4.  Who  are  proper  defendants  where  there  has  been  a  change  of  parties  ? 
As  in  covenants  running  with  the  land  ;  under  lessee  ;  survivor  of  several 
persons  bound ;  representatives  of  deceased  obligor,  8tc.  ;  heir  and  devi- 
see, and  baron  and  feme  ? 

5.  Who  are  proper  parties  in  actions  ex  delicto  in  reference  to  the  inter- 
est of  the  plaintiff  and  liability  of  defendants?  In  respect  to  the  number 
of  parties,  and  who  must,  or  7nay  be  joined  ?  Where  there  has  been  an  as- 
signment of  interest?  In  the  case  of  survivorship  ?  Where  either  party  is 
dead  ?  In  case  of  bankruptcy,  insolvency,  or  marriage  ?  What  are  the 
consequences  of  error  ? 

6.  Who  proper  defendants  as  between  the  original  parties,  and  with  re- 
spect to  tlicir  liability  ?  With  reference  to  the  number  of  the  parties,  the 
charge  of  interest,  death  of  the  wrongdoer,  and  the  case  of  baron  and  feme  ? 
What  is  the  rule  as  to  the  effect  of  the  death  of  the  wrongdoer  on  the  action 
ex  delicto  ? 

CuAPTER  XIV. —  OJ  the  original  Wril. 

1.  What  recent  changes  have  been  made  as  to  the  law  of  appearance 
bail? 

2.  How  is  the  writ  of  riglit  commenced?  What  is  the  process  called  ? 
By  what  process  are  mixed  actions  commenced?  How  is  ejectment  com- 
menced?    And  how  the  prosecution  of  personal  actions  ?     What  the  first 


•CHAP.  15.]  THE  COMMENTARIES.  IT 

process  in  personal  actions  witli  us  ?  Rule  us  to  the  issue  of  the  capias? 
Where  it  may  be  sued  out  though  the  defendant  docs  not  reside  in  the  coun- 
ty ?     Effect  of  our  statute  on  the  doctrines  of  local  and  transitory  actions  ? 

3.  Mode  of  suing  out  process?  What  endorsement  necessary  ?  When 
may  bail  be  demanded  ?  When  not?  Effect  of  improper  demand  ?  Can 
it  be  demanded  of  heirs  or  executors?  How  may  bail  be  required  by  ma- 
gistrate on  affidavit  ?  Where  bail  may  be  required  by  rule  ?  Duty  of  sheriff 
where  bail  is  required  ?  What  is  his  power  in  entering  the  house  of  de- 
fendant to  execute  process  ? 

4.  Who  are  privileged  from  arrest  ?  On  what  day  is  it  unlawful  to  exe- 
cute process  ?  How  is  bail  now  taken  ?  Before  whom  is  the  recognizance 
entered  into  ?  Duty  of  sherifl'  when  no  bail  is  given  ?  How  is  recogni- 
zance to  be  returned  ?  Capias  when  returnable  ?  When  to  be  executed? 
What  is  the  appearance  day  ?  How  is  party  to  appear?  What  is  the  cha- 
racter of  bail  in  detinue  ? 

5.  What  steps  are  taken  if  the  first  process  is  not  executed  ?  What  are 
the  ulterior  proceedings  to  enforce  appearance,  or  to  obtain  judgment? 
What  is  the  effect  of  the  return  "  kept  off  by  force"  ?  Liability  of  she- 
riff for  omitting  to  take  good  bail  ?     How  is  he  proceeded  against  with  us  ? 

6.  Proceeding  where  defendant  fails  to  appear  ?  What  is  the  common 
order?  And  writ  of  inquiry  ?  In  what  cases  is  it  necessary?  What  is 
the  consequence  if  the  office  judgment  is  not  set  aside  ?  When  may  it  be 
set  aside  ?  And  how?  And  on  pleading,  what  sort  of  plea  ?  How  and 
when  set  aside  when  there  is  a  writ  of  inquiry  ? 

7.  What  is  an  issuable  plea  ?  When  may  plea  in  abatement  be  receiv- 
ed to  set  aside  office  judgment  ?  In  what  light  is  general  demurrer  look- 
ed on  ? 

8.  What  is  a  bail  piece?  Its  use  to  the  bail?  How  he  may  use  it? 
How  may  he  surrender  his  principal  ?     How  may  he  obtain  exoneration  ? 

9.  What  are  creditor's  proceedings  against  the  bail  ?  How  is  the  bail  to 
be  fixed  ?  How  is  judgment  rendered  on  the  scire  facias  ?  To  what  time 
should  the  sci.  fa.  be  returnable  ? 

10.  Proceedings  in  suits  against  privileged  persons,  how  commenced  ? 
Summons,  how  long  to  be  served  before  return  day  ? 

11.  What  is  the  course  of  proceeding  by  attachment?  On  what  terms 
is  it  issued  ?     How  may  claimants  of  the  effects  interplead  ? 

12.  What  summary  proceeding  is  allowed  to  securities  and  others  ?  To 
whom  is  the  remedy  extended  ?  How  proceeded  in  ?  What  previous  no- 
tice of  motion  is  required  ? 

Chapter  XV. — Of  Pleading. 

1.  Pleadings  what  ?  Object  and  end  of  them  ?  How  effected  ?  Issue 
v/hat?  Its  advantages?  What  should  be  its  qualities?  What  is  meant 
by  its  being  material  ?  What  is  duplicity  in  pleading?  What  is  required 
as  to  certainty  ? 

2.  What  is  the  declaration  ?  How  called  in  real  actions  ?  Where  seve- 
ral distinct  demands  are  set  forth,  or  the  same  demand  in  several  ways,  what 
arc  these  distinct  statements  called  ?  Give  an  instance  of  this  mode  of 
declaring? 

3.  What  are  the  constituent  parts  of  the  declaration  ?  What  is  observed 
as  to  designating  the  court  and  laying  the  venue?  Whence  originated  the 
necessity  of  laying  the  venue  ?  What  in  Virginia  gives  jurisdiction  to  the 
court  ?  In  real  actions  ?  In  personal  actions  ?  In  what  cases  may  defen- 
dant be  sued  out  of  the  county  of  his  residence  ? 


18  ANALYSIS  OF  [  BOOK  3. 

4.  In  what  actions  must  damages  be  laid  ?  In  what  not?  What  pro- 
fert  is  necessary  where  executor  or  administrator  sues  ? 

5.  What  is  the  consequence  of  a  variance  between  the  writ  and  decla- 
tion  ?  How  to  be  taken  advantage  of  ?  Oyer,  when  granted  and  when 
refused  ? 

6.  What  is  a  nonsuit  ?  And  its  effect  ?  How  does  it  differ  from  a  re- 
traxit ?  What  is  a  discontinuance  ?  And  its  effect?  Can  the  plaintiff  be 
forced  in  Virginia  to  suffer  a  nonsuit  ?  When  must  he  suffer  it  if  he  elects 
to  be  nonsuited  ? 

7.  Defence,  what  is  the  legal  meaning  of  the  term  ?  How  should  it  be 
made?  What  is  an  imparlance?  Are  they  usual  with  us?  What  are 
views,  vouchers,  and  demurring  of  the  parol  for  infancy  ?  What  our  law  as 
to  them  ? 

8.  What  two  sorts  of  pleas  are  there  ?  What  are  dilatory  pleas  ?  When 
must  they  be  pleaded  ?  Are  they  considered  issuable  within  the  meaning 
of  I  R.  C.  ch.  128,  §  77  ?     How  do  they  conclude  ? 

9.  What  are  the  several  kinds  of  dilatory  pleas,  and  the  order  in  which 
they  should  be  pleaded  ?  Effect  of  death  upon  a  pending  action  ?  Its  ef- 
fect upon  actions  arising  ex  delicto  ?  What  is  abatement  ?  Suit  abated  by 
death,  how  revived  ?  How  must  a  plea  in  abatement  be  verified  ?  What 
is  the  rule  as  to  pleas  of  abatement  ?  JExemplify  the  difference  between 
matter  in  bar  and  matter  in  abatement  ?  What  is  the  judgment  where  plea 
in  abatement  is  overruled  on  demurrer  ?  Or  found  false  by  verdict  ?  How 
if  found  true  ?     How  as  to  costs  if  plaintiff  acknowledges  error? 

10.  How  must  the  defendant  defend  himself  on  the  merits  ?  What  is  a 
demurrer  ?  What  a  plea  to  the  action  ?  How  may  party  rely  on  a  tender  ? 
Or  confess  for  part  and  defend  for  the  residue  ?  How  in  such  case  should 
he  make  defence  ?  Effect  of  not  making  full  defence  ?  Or  of  making  full 
defence,  and  shewing  discharge  only  as  to  part  ? 

11.  What  is  a  plea  in  bar  ?  What  is  "  the  general  issue"  ?  What  is  a 
special  plea?  What  maybe  given  in  evidence  under  the  general  issue  ? 
What  not? 

12.  Mention  some  of  the  most  usual  special  pleas  in  various  actions  ? 
What  is  an  estoppel  ?  How  many  kinds  of?  What  does  not  operate  as? 
Effect  of  estoppel  ?     How  to  be  pleaded  ?     How  to  be  replied  to  ? 

13.  How  are  special  pleas  to  be  verified  ?  When  they  are  in  the  nega- 
tive ?     Hov/  does  the  general  issue  conclude  ? 

14.  Rules  as  to  pleas  ?  First,  as  to  being  single  ?  Meaning  of  the  rule  ? 
Does  it  apply  to  the  declaration  ?  What  does  or  does  not  amount  to  du- 
plicity ?  Modifications  of  the  rule  on  this  subject?  When  there  are  seve- 
ral pleas  how  does  the  plaintiff  reply  ?  May  defendant  demur  and  plead 
to  the  same  count?     May  plaintift'  demur  and  reply  to  same  plea? 

15.  Second  rule,  that  the  plea  must  be  direct,  not  argumentative  ;  illus- 
trate it.     Can  two  afhrmatives  or  two  negatives  make  an  issue  ? 

16.  Rule  a*s  to  certainty,  its  object?  What  certainty  required  as  to  time 
— place  — quantity  or  value  ?  What  as  to  persons — title,  justification  under 
authority,  or  other  matter  alleged  in  pleading?  In  what  case  is  the  party 
relieved  from  the  necessity  of  setting  forth   his  allegations  with  certainty  ? 

17.  Fourth  rule  ;  that  the  plea  must  answer  the  whole  allegation  ;  give 
an  example  of  the  consequence  of  defect  herein. 

18.  What  is  a  plea  taken  to  confess  ?  What  is  the  object  and  effect  of 
a  protestation  ?  What  are  the  other  enumerated  rules  as  to  pleading  ? 
What  is  a  departure  in  pleading  ?  When  must  a  party  make  pro/ert  1  How 
are  affirmative  pleadings  to  conclude  ? 

19.  What  is  the  rule  as  to  pleading  what  amounts  to  the  general  issue  ? 
Modification  of  the  rule?     What  is  a  replication?     What  a  rejoinder? 


CHAP.  17.]  THE  COMMENTARIES.  19 

Sur-rejoinder  ?  Rebutter  ?  Sur-rebutter  ?  "What  is  a  novel  assignment, 
and  when  is  it  necessary  and  proper  ?  What  is  tendering  an  issue  ?  How 
is  it  made  up  ?     What  is  the  similiter  ? 

20.  What  is  an  immaterial  issue?  Effect  of  trial  of?  Distinction  be- 
tween informal  and  immaterial  issue?  Between  immaterial  and  defective 
defence  ?  When  may  judgment  be  entered  non  obstante  veredicto  ?  Give 
an  instance  of  an  immaterial  issue  ? 

21.  What  is  a  demurrer?  Kinds  of  ?  When  should  defendant  demur 
to  declaration  in  whole,  or  in  part  only  ?  How  do  you  proceed  in  a  demur- 
rer for  variance  from  a  deed  described?  For  whom  judgment  is  given 
when  there  are  faults  on  both  sides  ?  In  what  case  by  our  law  may  a  party 
take  issue  both  in  law  and  in  fact?  Where  defendant  both  demurs  and 
pleads  which  is  first  tried  ? 

22.  When  may  defendant  move  that  a  faulty  count  be  disregarded  ? 
When  may  demurrant  have  leave  to  withdraw  demurrer  and  plead  or  reply  ? 
When  may  party  have  leave  to  amend  ?  How  is  the  judgment  on  demur- 
rer? What  is  the  usual  course  as  to  amendments?  What  is  considered 
as  admitted  by  the  demurrer  ?  What  by  taking  issue  upon  the  facts  ?  Af- 
ter trial,  how  may  defects  be  objected  ? 

23.  By  what  considerations  should  we  determine  whether  to  demur  or 
plead  ?  What  is  our  law  as  to  costs,  or  writs  of  error,  or  motions  to  arrest 
judgment  ? 

24.  What  is  a  discontinuance  ?  What  is  a  plea  puis  darrein  continu- 
ance ?  What  constitutes  the  record  ?  How  are  issues  in  law  tried  ?  How 
are  issues  in  fact  tried  ? 

25.  Give  an  abstract  of  the  mode  of  proceeding  in  the  commencement 
and  prosecution  of  suits.  On  the  part  of  the  plaintiff?  On  the  part  of  the 
defendant  ?  Proceedings  against  several  joint  defendants  when  the  process 
has  not  been  executed  on  part  of  them  ?  Can  several  judgments  be  enter- 
ed on  a  joint  contract,  or  in  a  joint  action  on  contract?  Office  judgment, 
what  and  how  and  at  what  time  to  be  set  aside  ? 

26.  Rules — rule  days — rule  book  what  ?     Rules,  when  held  ? 

Chapter  XVI.— 0/  Trial. 

1.  Trial ;  what  is  the  legal  acceptation  of  the  word  ?  Kinds  of?  Trial 
by  record  when  it  takes  place?  What  verity  does  the  law  attribute  to  the 
record  ?  What  is  the  plea  to  scire  facias  or  debt  upon  a  judgment?  Of 
what  is  a  judgment  conclusive  ?  How  of  the  judgment  of  foreign  courts? 
When  are  they  conclusive  ?  When  examinable  and  how?  What  is  the 
effect  of  a  judgment  against  the  plaintiff  in  a  foreign  court  ?  In  what  light 
are  the  States  of  the  Union  to  be  regarded  in  relation  to  this  matter?  And 
the  federal  courts? 

2.  Records  how  authenticated  ?  Plea  oi  nul  tiel  record,  how  does  it  con- 
clude ?     What  provision  has  been  made  as  to  records  injured  or  destroyed  ? 

3.  Trial  by  inspection,  when  is  it  used  ? 

4.  Trial  by  certificate,  when  allowed  ?  How  is  the  question  "  what  the 
law  of  a  foreign  state  is  "  to  be  tried  ?  What  proper  evidence  of  what  the 
foreign  law  is  ?     How  as  to  the  printed  statutes  ? 

6.  What  is  wager  of  law  ?     Is  it  in  force  with  us? 

Chapter  XVII. — Trial  by  Jury. 

1.  How  many  kinds  of  trial  by  jury  are  there  ?  What  ia  the  ordinary 
trial  by  jury  ?  How  is  the  jury  summoned?  Of  whom  composed  ?  Who 
inay  not  be  jurors  1    Jury  de  medietate  lingua  what  ? 


20  ANALYSIS  OF  [  book  3. 

2.  Challenges  what — of  how  many  kinds  and  for  what  causes?  Either 
to  the  array  1  Or  to  the  polls  ?  What  are  challenges  propter  affectum, 
2)ropter  defectum,  and  propter  delictum  1 

3.  Tales  what  and  when  summoned  1 

4.  On  whom  is  the  onus  probandi  on  the  trial  of  an  issue?  Who  has 
the  right  to  open  the  pleadings  and  to  reply  ? 

5.  Evidence,  of  what  it  consists  1  What  are  the  several  kinds  of  written 
proofs?  What  general  rule  is  laid  down  as  to  evidence?  When  is  se- 
condary evidence  admissible?     Or  hearsay  ?     Or  books  of  account? 

6.  Parol  evidence,  how  procured?  What  witnesses  are  competent  or 
otherwise?  Who  not  permitted  to  disclose  the  secrets  of  another?  How 
many  witnesses  suffice  ?  State  the  distinction  between  positive,  circum- 
stantial, and  presumptive  evidence  ? 

7.  What  is  the  oath  administered  to  a  witness? 

8.  What  is  a  bill  of  exceptions?  Object  of  it?  What  are  the  rules  and 
principles  laid  down  for  fi-aming  it  ?  Can  it  have  the  effect  of  a  demurrer 
to  evidence  ?  Is  such  demurrer  a  waiver  of  it  ?  How  is  the  sealing  a  bill 
of  exceptions  to  be  enforced? 

9.  Demurrer  to  evidence  what?  Its  object?  Instructions  to  the  jury 
how  to  be  obtained  ?  What  does  the  party  demurring  admit  ?  How  should 
the  demurrer  be  drawn?  When  is  it  proper  and  judicious  to  demur? 
When  will  not  the  other  party  be  compelled  to  join  ?  When  may  a  new 
trial  be  granted  after  demurrer  to  evidence  ?  Can  objections  be  taken  to 
the  pleadings  on  trial  of  the  demurrer? 

10.  In  what  manner  is  examination  and  cross-examination  conducted  ? 
What  course  is  pursued  with  the  jury  after  the  evidence  is  gone  through  ? 

■  What  is  a  verdict?  What  misconduct  of  jury  or  parties  will  vacate  it? 
How  many  kinds  of  verdict  are  there?  What  is  a  privy  verdict?  A  spe- 
cial verdict?  What  do  you  understand  by  a  "special  case  stated,"  or  a 
case  agreed  ? 

11.  What  provisions  are  made  by  our  law  for  production  of  papers  ? 
And  for  taking  depositions  of  witnesses  ? 

Chapter  XVIII. —  Of  Judgment  and  its  Incidents. 

1.  What  is  the  postea?  How  may  judgment  be  suspended?  And  for 
what  causes?  New  trials  for  what  causes  granted?  What  advantages 
arise  from  the  judicious  practice  of  new  trials?  How  is  the  ground  laid 
for  a  new  trial  ?  When  is  it  refused  ?  What  terms  are  sometimes  im- 
posed ?  What  misconduct  of  the  jury  or  parties  is  ground  for  new  trial  ? 
When  is  a  new  trial  granted  or  refused  on  the  ground  of  surprise,  or  new 
evidence,  or  that  the  verdict  is  contrary  to  evidence  ? 

2.  What  difference  is  made  as  to  granting  new  trial  between  the  plain- 
tifF  and  defendant  in  ejectment? 

3.  What  is  the  first  leading  rule  as  to  granting  new  trials?  W^hat  is  the 
second?  When  granted  for  excessive  or  inadequate  damages?  When 
not?  What  is  the  third  rule  ?  What  is  the  difference  between  awarding 
a  venire  de  novo,  and  granting  a  new  trial?  When  is  the  former  allowed  ? 
What  is  the  law  of  costs  in  the  two  cases  ? 

4.  What  is  meant  by  changing  the  venue  ?  How  and  for  what  cause  is 
it  changed  ? 

5.  How  and  for  what  causes  may  judgment  be  arrested  ?  When  for  va- 
riance? Or  for  defect  in  declaration  ?  What  errors  cured  by  verdict  even 
before  the  statutes  of  Jeofail?  What  is  the  distinction  between  stating  a 
defective  case,  and  stating  a  good  case  defectively  ? 


aiAP.  19J  THE  COMMENTARIES.  21 

6.  What  are  the  provisions  of  the  act  of  Jeofails  as  to  arrests  of  judg- 
ment? For  variance  1  For  mispleading  or  insufficient  pleading?  For 
discontinuance  or  misjoining  of  issue  ?  For  mistakes  of  name  or  sum  "?  For 
omitting  averments  ?  Or  setting  forth  matter  by  way  of  recital  ?  Or  for 
not  alleging  the  matter  to  be  within  the  jurisdiction  or  property  to  be  in 
the  plaintiff?  Or  for  mistaking  the  form  of  action  ?  Or  for  defects  in  form 
or  substance  in  the  declaration  ? 

7.  What  provision  is  made  as  to  judgments  by  default?  What  distinc- 
tion prevails  as  to  this  matter  ?  What  provision  is  made  where  there  is  a 
faulty  count  ?     Or  for  certain  omissions  in  detinue  ? 

8.  What  is  the  effect  of  a  confession  of  judgment,  upon  errors  in  the 
proceeding?  How  mistakes,  &c.  in  judgments  may  be  amended  upon  mo- 
tion in  the  court  where  rendered?  Or  even  in  appellate  court?  How  par- 
ty may  release  excess  even  after  judgment? 

9.  What  is  a  repleader,  and  when  is  it  rendered  necessary  ?  At  whose 
instance  it  cannot  be  granted  ?  When  it  will  not  be  awarded  ?  Is  it  ever 
awarded  so  far  back  as  to  include  the  declaration  ? 

10.  What  are  the  several  sorts  of  judgment  ?  What  is  an  interlocutory 
and  what  a  final  judgment  ?  When  a  writ  of  inquiry  is  necessary  "?  What 
is  it?  What  practice  has  recently  prevailed,  in  England,  for  ascertaining 
the  amount  due  where  it  depends  on  mere  calculation  ? 

11.  How  is  judgment  entered  upon  a  bond  in  a  penalty  with  conditiorsi 
to  pay  money  ?  Or  to  perform  covenants,  &c.?  What  is  the  general  rule 
as  to  costs  with  us?  As  to  executors  and  administrators?  What  provided 
as  to  security  for  costs  to  be  given  by  absent  plaintiffs?  On  whom  does 
the  onus  as  to  residence  lie  ?  What  points  have  been  ruled  as  to  this  se- 
curity for  costs?     Officers'  fees  how  recovered  from  the  security? 

12.  What  provision  is  enacted  as  to  paupers'  suits? 

13.  What  is  the  rule  as  to  costs  with  us  where  there  are  various  pleas  ? 
How  in  the  case  of  executors  ? 

14.  When  shall  the  party  recover  no  more  costs  than  damages  ? 

Chapter  XIX. —  Of  Proceeding's  in  the  Nature  of  Appeals. 

1.  What  is  an  audita  querela  ?  What  is  the  substitute  for  it  now  used  in 
courts  of  law  ?  What  remedy  in  equity  is  resorted  to  and  has  superseded 
the  audita  querela  in  many  cases  ? 

2.  What  is  a  writ  of  error?  How  many  kinds  of  it  ?  What  amend- 
ments of  the  record  are  permitted  and  at  what  time  ?  What  is  the  writ  of 
error  coram  nobis']  When  and  for  what  does  it  lie  ?  Is  the  allowance  of 
it  matter  of  discretion  or  ex  debito  justitioi  ?  What  are  deemed  clerical 
errors?  What  remedy  has  superseded  in  practice  the  writ  of  error  coram 
nobis? 

3.  How  are  writs  of  error  for  matter  of  law  obtained?  On  what  terms? 
What  is  the  remedy  where  it  is  refused  by  a  superior  court  of  law?  Who 
must  sue  out  the  writ?  Who  only  entitled  to  do  so  ?  Summons  and  se- 
verance when  necessary  ?  What  is  the  effect  of  a  writ  of  error  ?  When 
is  it  a  supersedeas?  To  what  does  its  effect  herein  extend?  How  is  it  to 
be  proceeded  in  ?  How  are  errors  assigned  ?  What  is  a  certiorari,  and 
its  purpose  ?  What  is  the  plea  to  a  writ  of  error?  What  in  error  coram 
nobis  ?  How  in  the  latter  case  the  defendant  should  plead  if  he  denies  the 
truth  of  the  allegation  ?  What  is  the  judgment  in  error  in  law  ?  What  in 
error  coram  nobis  ? 

4.  What  is  provided  as  to  sending  up  the  record  to  the  appellate  court  1 
How  far  is  a  judgment  considered  an  entire  thing  ?  When  may  it  be  re- 
versed in  part "?     What  judgment  must  the  appellate  court  give  1    What 


22  ANALYSIS  OF  [  BOOK  3. 

damages  and  costs  are  allowed  7     How  is  money  paid  under  a  judgment 
recovered  back  upon  reversal  ? 

5.  What  is  a  supersedeas  at  common  law?  How  is  it  used  with  us? 
When  does  it  lie  ?  Is  the  party  confined  to  errors  upon  the  face  of  the 
proceedings'? 

6.  What  is  an  appeal  1  Who  is  entitled  to  appeal  ?  From  the  judg- 
ment of  what  sort  of  court?  In  what  kind  of  contest"?  When  and  in 
what  courts  is  the  cause  heard  de  novo  upon  the  facts?  What  are  the  dif- 
ferences between  writs  of  error,  appeals,  and  supersedeas  1  What  appeals 
are  now  demandablc  as  of  right  ? 

Chapter  XX. — Of  Execution. 

1.  What  is  an  execution?  Can  it  issue  before  final  judgment?  At 
law,  or  in  equity?  Within  what  time  it  must  issue?  How  kept  alive? 
How  revived  ?  Within  what  time?  How  where  the  plaintiff  has  been  de- 
layed by  injuncton  ?     Or  stay  of  execution  ? 

2.  What  is  the  effect  of  a  variance  between  judgment  and  execution  ? 
How  and  on  whose  motion  may  execution  be  quashed?  From  what  court 
does  it  emanate  ?  In  case  of  appeals,  &c.?  To  what  county  may  it  issue  ? 
In  whose  name  or  names  ?  What  is  the  effect  of  the  death  of  party  after 
judgment?  Judgment  how  and  in  whose  name  revived  ?  How  where  one 
of  two  defendants  dies'?  What  is  the  effect  of  death  upon  an  execution 
in  the  officer's  hands?  When  may  a  party  change  his  execution?  Can 
there  be  different  executions  against  several  defendants? 

3.  What  is  the  execution  in  a  writ  of  right?  In  ejectment?  In  nui- 
sance ?  In  detinue  ?  What  is  taken  by  the  distringas  ?  How  it  may  be 
superseded  ?  When  and  for  what  a^/a  or  casa  also  goes  ?  Can  the  she- 
riff take  the  property  itself?  What  remedy  may  perhaps  be  had  in  equity  ? 
How  may  the  bail  in  detinue  protect  himself? 

4.  How  many  kinds  of  executions  are  there  where  money  only  is  reeo- 
vered  ?  What  is  the  capias  ad  satisfaciendum?  Against  whom  may  it  be 
sued  ?  What  is  its  object?  Does  it  lie  against  an  infant  or  feme  covert  ? 
Who  privileged  from  this  execution?  When  are  executors  liable  to  it? 
Can  any  other  execution  issue  while  the  defendant  is  in  execution?  Sup- 
pose he  dies  in  custody  ?  To  whom  is  the  execution  directed,  and  what 
does  it  command?  How  to  be  executed?  How  may  defendant  relieve 
himself?  How  is  the  property  tendered  to  be  disposed  of?  Suppose  a 
forthcoming  bond  is  then  tendered  ? 

5.  How  is  the  casa  to  be  levied  ■?  What  constitutes  an  arrest?  Suppose 
the  party  is  afterwards  at  large,  what  is  the  consequence  ?  How  is  it  when 
taken  on  mesne  process  and  he  is  seen  at  large? 

6.  What  amounts  to  an  arrest?  Within  what  jurisdiction  only  can  the 
officer  arrest  ? 

7.  What  is  an  escape?  What  is  a  constructive  escape  ?  Give  the  seve- 
ral instances  mentioned.  When  may  the  prisoner  be  confined  on  his  way 
to  jail  ?  What  is  said  of  jails?  How  is  the  sherifi'to  be  taken  on  a  casa 
and  how  confined? 

8.  What  is  the  privilege  of  a  member  of  assembly  ?  "What  must  he  do 
when  his  privilege  ceases  ? 

9.  Actual  escapes  how  divided?  What  considered  a  voluntary  escape  7 
What  merely  negligent  ?  What  justifies  enlarging  the  prisoner?  When 
only  is  the  officer  chargeable  by  our  law?  What  is  the  effect  of  a  retaking 
upon  fresh  pursuit  ?     Or  of  a  voluntary  return  ? 

10.  What  are  the  provisions  of  our  statute  as  to  escapes?  Does  it  ex- 
tend to  mesne  process  ?     To  whom  may  the  escape  warrant  be  granted  ? 


CHAP.  20.]  THE  COMMENTARIES.  23 

To  whom  directed  ?  What  must  it  recite  ?  Where  must  the  party  be  confin- 
ed if  retaken  1     What  is  the  course  where  the  escape  was  on  mesne  process  t 

11.  What  are  the  statutory  provisions  as  to  prison  rules?  To  whom  ia 
the  bounds  bond  taken  and  how  is  it  to  be  disposed  oH  What  are  the  pro- 
visions where  the  debtor  breaks  the  bounds  and  escapes  ?  If  the  prisoner 
escapes  by  the  jailer's  consent,  what  remedy  has  the  creditor — against  the 
sheriff?  Against  the  debtor  ?  For  what  and  to  what  extent  is  the  sheriff 
liable  ? 

12.  Can  the  sheriff  relieve  himself  by  retaking  the  prisoner,  where  the  est 
cape  was  with  his  consent  ?  How  if  the  escape  was  merely  a  negligent  es- 
cape ?     What  relief  is  given  by  law  to  insolvent  debtors  ? 

13.  How  far  is  a  casa  executed  a  satisfaction  of  the  judgment  ?  What 
is  the  effect  of  a  release  of  the  body"?  Or  of  the  release  of  one  of  two 
joint  obligors  in  execution  ? 

14.  What  is  the  effect  of  a  forthcoming  bond  ?  Is  it  a  satisfaction  and 
discharge  ?  How  may  it  be  quashed  ?  Effect  of  quashing?  Suppose  the 
defendant  dies  in  execution  what  is  plaintiff's  remedy  ? 

15.  How  far  does  a  casa  bind  the  lands  or  goods  under  our  recent  sta- 
tutes ?  How  do  you  proceed  against  the  bail  when  the  casa  is  returned 
non  est  inventusl 

16.  What  is  a  fieri  facias  1  What  may  the  sheriff  do  in  executing  it? 
Where  property  is  to  be  taken  under  a  fifa,  which  does  not  belong  to  de- 
fendant, what  consequences  follow, — as  to  sheriff's  liability, — as  to  the  par- 
ty's title  ? 

17.  What  kind  of  property  may  be  taken  ?  How  as  to  trust  estates  ?  Or 
mere  equitable  interest,  such  as  an  equity  of  redemption  ? 

18.  In  what  manner  may  the  sheriff  take  the  property?  When  may  the 
execution  be  levied  ?     What  is  the  privilege  herein  of  members  of  assembly  ? 

19.  What  is  the  lien  of  the  fifa?  What  its  extent?  How  may  it  bo 
lost  ?     What  is  the  effect  of  a  forthcoming  bond  on  the  lien  ? 

20.  When  property  has  been  taken  and  released,  can  there  be  a  new  ex- 
ecution? 

21.  What  are  forthcoming  bonds?  What  their  effect  on  the  lien,  before 
and  after  forfeiture  ? 

22.  What  amounts  to  a  levy  ?  What  are  the  proceedings  subsequent  to 
it?     Suppose  the  sheriff  permits  the  debtor  to  eloign  the  goods  ? 

23.  What  are  the  proceedings  after  the  levy?  What  principles  are  men- 
tioned as  to  forthcoming  bonds?  The  effect  of  mis-recitals?  How  erro- 
neous bond  may  be  quashed  ?  At  whose  risk  the  property  is,  after  it  is  re- 
stored to  the  debtor?  What  is  the  effect  of  failing  to  deliver  any  part? 
When  is  the  condition  saved  by  injunction  ?  When  is  the  execution  con- 
sidered part  of  the  record  of  the  motion  for  a  judgment  on  forthcoming 
bond,  without  a  bill  of  exceptions  ?     How  as  to  the  notice  ? 

24.  Where  and  when  must  the  bond  be  filed  ?  What  has  it  the  force  of, 
when  filed  ?  How  may  defendant  deny  its  execution  ?  Plea  of  non  est 
factum,  how  directed?  Can  appeal  be  allowed  from  a  superior  court,  from 
a  judgment  on  a  forthcoming  bond  ? 

25.  What  is  the  further  duty  of  the  sheriff?  How  must  he  proceed  to  sell  ? 
How  should  he  proceed  when  the  property  is  claimed  by  a  third  person? 
What  bond  may  he  demand  ? 

26.  What  is  a  venditioni  exponas  ?  When  is  it  necessary  or  proper  ? 
What  is  a  distringas  nuper  vice  comitein  ?     When  is  it  necessary  ? 

27.  What  is  the  sheriff's  duty  as  to  paying  over  the  money  ?  What  are 
replevy  bonds  ? 

28.  What  is  a  levari  facias  1  What  its  effect  ?  How  does  it  differ  from 
the  elegit  ?     From  what  time  does  it  bind  the  goods  ? 

VOL.  2—67 


24  ANALYSIS  OF  [  book  3. 

29.  What  is  an  elegit?  What  may  be  taken  by  it?  Is  a  trust  estate 
subject  to  this  execution  ?  How  as  to  equities  of  redemption  ?  Can  it 
reach  mere  equities  ?  From  what  time  are  the  debtor's  lands  bound  ?  What 
chattels  cannot  be  reached  by  elegit?  In  what  manner  are  the  chattels  to 
to  be  disposed  of?  Can  the  land  be  reached  if  there  be  chattels  sufficient 
to  satisfy?  What  part  of  the  lands  may  be  taken?  How  may  the  whole 
be  reached  ? 

30.  What  is  the  effect  on  the  lien  of  letting  the  judgment  run  out  of  date  ? 
How  far  is  the  lien  revived  by  the  scire  facias  to  revive  the  judgment ; — 
first  as  respects  the  debtor,  and  secondly  as  it  respects  purchasers  from  him  ? 
What  is  the  effect  upon  the  elegit,  of  the  casa-lien  now  given  by  law  ? 

31.  How  is  relief  afforded  either  party  in  the  case  of  irregular  execu- 
tions ?  When  will  equity  aid  the  plaintiff  in  his  execution  ?  How  will  it 
relieve  against  the  heir? 

32.  What  sort  of  relief  is  afforded  in  equity  in  case  of  executions  ? 
What  is  necessary  to  entitle  the  creditor  to  ask  relief  in  equity?  What  is 
the  nature  of  the  execution  against  the  heir  when  judgment  has  been  ren- 
dered against  him,  on  the  bond  of  his  ancestor? 

Chapter  XXL  — 0/  Equity. 

1.  What  is  the  origin  and  nature  of  courts  of  equity  ?  Does  Blackstone 
eonsider  the  usual  contrasting  of  law  and  equity  as  free  from  error? 

2.  What  are  his  remarks  as  to  the  power  of  equity  in  what  are  called 
hard  cases  ?  And  what  as  to  the  spirit  of  equity  in  construing  statutes  ? 
What  as  to  its  supposed  exclusive  jurisdiction  in  cases  of  fraud,  accident, 
and  trust  ?  What  as  to  its  following  precedents  ?  What  as  to  construc- 
tion of  will  or  agreements  ?     What  as  to  the  rules  of  decision  ? 

3.  In  what  then  does  Mr.  B.  consider  the  difference  to  consist  between 
law  and  equity?  What  difference  as  to  the  mode  of  proof?  What  juris- 
diction grows  out  of  the  compulsory  discovery  on  oath  ?  What  difference 
is  there  as  to  the  mode  of  trial  ?  And  relief?  What  is  the  maxim  of  equi- 
ty as  to  things  which  ought  to  be  done  ?  Various  exercise  of  jurisdiction 
resting  on  the  nature  of  the  relief  afforded  ?  Or  on  the  true  construction 
of  securities  for  money  lent  ?  Or  on  the  existence  of  trusts  and  second 
uses  ? 

4.  What  is  the  first  great  maxim  mentioned  in  the  commentaries,  as  pre- 
vailing in  courts  of  equity  ?  Give  some  instances  in  which  equity  seems 
not  to  follow  the  law  ; — 1st,  as  to  statutes  ?     2d,  as  to  executory  trusts  ? 

5.  Are  the  legal  and  equituble  estnte  governed  by  the  same  rules  in  gen- 
eral ?  How  is  c.  q.  t.  considered  ?  How  will  his  estate  pass  ?  How  as  to 
dower  in  England  ?  How  where  the  equitable  and  legal  estate  meet  in  the 
same  person  ?     What  rule  then  prevails  ? 

6.  What  correspondence  and  what  difference  is  there  between  equity 
and  law,  as  to  administration  of  assets,  legal  and  equitable? 

7.  What  is  the  second  maxim  mentioned  ?  Give  instances  of  this  in  re- 
ference to  creditors  and  securities,  and  to  buying  in  incumbrances. 

8.  What  is  the  third  maxim  ?  Will  equity  relieve  one  who  does  not 
come  with  clean  hands  ?  How  when  the  parties  are  not  pari  deliclo  ?  On 
what  terms  is  equity  extended  to  him  who  asks  it?  Give  instances  of  this 
in  the  case  of  tacking. 

9.  Under  what  fifteen  general  heads  are  the  subjects  of  equitable  juris- 
diction arranged  in  this  work  ? 


€HAP.  21.]  THE  COMMENTARIES.  25 

1.  Of  Accident. 

1.  Give  examples  of  accidents,  against  which  equity  gives  relief.  Is  the 
jurisdiction  in  cases  of  lost  bonds  affected  by  the  recent  jurisdiction  of  courts 
of  law  ?  Is  it  exercised  in  cases  where  no  profert  is  required  at  law  ?  What 
is  the  provision  of  our  law  as  to  a  lost  bill  ?  What  decreed  as  to  lost  bank 
notes  ? 

2.  Is  the  jurisdiction  exercised  against  a  surety  ?  Why  ?  What  is  es- 
sential to  a  bill  in  equity  to  set  up  a  lost  bond  ?  Difference  herein  when  re- 
lief is  or  is  not  sought?  What  other  accidents  will  equity  relieve  against? 
What  not? 

3.  What  remedy  has  been  afforded  in  case  of  quit-rents — or  confusion  of 
boundaries  ?  Or  of  vested  estates  defeated  by  accident  ?  Difference  here- 
in between  such  cases  and  conditional  limitations,  or  precedent  conditions? 
How  is  it  where  compensation  cannot  be  made  in  damages  ? 

4.  What  will  be  presumed  in  favor  of  uninterrupted  possession,  from 
length  of  time,  grounded  on  possible  loss  of  evidence  ? 

5.  What  instances  are  given  of  relief  to  executors  in  cases  of  accidental 
•depreciation  of  assets,  &c.  ?  When  may  party  have  relief  in  equity  though 
he  has  failed  to  caveat  ?     Is  relief  afforded  in  cases  of  lachesl 

6.  Is  the  suspension  of  specie  circulation  such  an  accident  as  will  afford 
ground  of  relief? 

2.  Of  Mistakes. 

1.  Do  mistakes  in  matters  of  law  furnish  ground  of  relief?  Case  of  re- 
lease to  one  of  several  obligors  ?  Cases  of  compromise  ?  Are  there  appa- 
rent deviations  from  the  general  rule  ?  Distinction  between  mistakes  in 
matters  of  remedy  and  as  to  matters  of  contract? 

2.  Is  mistake  in  fact  a  ground  of  relief?  How  as  to  defective  conveyan- 
ces ?     Or  defective  executions  of  a  power  ?     When  will  relief  be  refused  ? 

3.  Marriage  settlements  when  reformed?  When  not?  Marriage  arHc/es 
how  looked  upon  ? 

4.  Mistakes  of  quantity  in  tract  of  land  sold,  when  relieved  ?  What  in- 
fluence was  once  attributed  to  the  words  "  more  or  less  "  ?  What  the  true 
principle  ?  What  are  the  general  principles  set  forth  as  to  this  matter  ?  How 
far  is  parol  evidence  admissible  to  explain  the  intent  ?  What  is  the  measure 
of  compensation,  where  an  allowance  is  made  ? 

5.  When  are  mistakes  in  contracts  relieved  ?  When  either  party  is  mis- 
taken? When  both  are  mistaken?  What  sort  of  mistake  alone  will  be 
ground  of  relief?  What  is  the  obligation  of  a  buyer  to  discover  to  the  sel- 
ler secret  valuable  qualities  in  the  article  he  buys  ?  How  if  the  knowledge 
is  acquired  as  agent,  trustee,  orserjant?  Can  a  bargain  be  rescinded  only 
in  part  ? 

6.  Mistaken  delivery  of  deed — or  acknowledgment  of  boundary — or 
omission  to  record  deed,  hov  relieved  against  ?  Mistakes  in  wills — how 
established,  and  when  relieved  against  ?  ]\Iistake  in  cancelling  a  will,  when 
•relieved  ?  What  omissions  of  formalities  in  deeds,  &c.  are  not  the  subjects 
of  relief? 

3.  Of  Penalties  and  Forfeitures. 

1.  Give  instances  in  which  this  relief  is  afforded.  Show  how  it  is  applied 
to  the  cases  of  bonds — mortgages — forfeited  leases.  Sec.  ? 

2.  On  what  principle  does  this  relief  rest  ?  When  is  an  issue  quantum  dam- 
nificatus  directed?  When  is  strict  performance  of  covenants  relieved  against? 
Is  relief  usually  extended  where  the  brea-ch  consists  in  a  failure  to  pay  money? 


20  ANALYSIS  OF  [dookS. 

When  not  ?     When  time  is  of  the  essence  of  the  contract,  is  the  failure  re- 
lieved against? 

3.  When  is  reservation  of  interest  considered  a  penalty  ?  When  does 
interest  properly  begin  to  run  ? 

4.  Will  relief  be  given  when  compensation  cannot  be  made?  Or  in  fa- 
vor of  a  tenant  guilty  of  gross  misconduct  or  breach  of  contract?  Parti- 
cularly a  tenant  for  lives  ?  Or  in  case  of  liquidated  damages  ?  Or  of  legis- 
lative penalties  ? 

4.  Of  Accounts. 

1.  What  matters  of  account  give  equity  jurisdiction  ?  How  as  between 
landlord  and  tenant?  Rents  and  profits  in  dower?  Accounts  of  a  stew- 
ard, factor,  executor,  and  the  like  ?  How  as  to  partnerships,  concerns  of 
public  companies,  &c.,  mines  and  elegits? 

2.  What  analogy  to  the  statute  of  limitations  is  followed  in  these  matters 
of  account  ?  How  where  the  bill  is  upon  a  mere  equitable  title,  against  a 
third  person  not  affected  with  the  trust?  How  as  to  trusts — and  infant  es- 
tates ?  When  rents  and  profits  are  allowed  only  from  the  time  of  filing  the 
bill  ? 

3.  How  far  is  a  claim  for  {>ermancnt  improvements  allowed  ?  Is  it  ex- 
tended farther  than  as  a  mere  offset  against  rents  and  profits  ?  What  was 
the  common  law  doctrine  ?  When  allowed  by  reason  of  the  laches  of  the 
owner?     When  refused  ? 

4.  What  are  stated  accounts  ?  When  corrected  ?  What  disadvantages 
is  the  complainant  placed  under?  What  specification  is  required?  On 
whom  is  the  onus  probandi  1  What  do  you  mean  by  surcharging  and  falsi- 
fying ?  How  is  the  plaintiff  to  surcharge  and  falsify,  where  the  defendant 
relies  on  a  stated  account  ? 

5.  How  is  the  statute  of  limitations  considered  in  equity  ?  How  as  re- 
spects mere  equitable  demands  ?  Does  it  run  against  trusts  and  frauds  ? 
First,  as  to  trusts  ;  what  kind  of  trusts  are  unaffected  by  it?  Does  it  appljy 
as  against  trusts  recognized  by  common  law  ?  And  even  to  mere  construc- 
tive trusts  in  equity  ? 

6.  When  there  is  no  longer  a  subsisting  and  continuing  trust,  does  the 
act  apply  ?  How  is  it  between  tenants  in  common  ?  Or  as  to  a  party  en- 
tering upon  an  infant's  estate  r  Or  as  between  trustee  and  c.  q.  t.  on  one 
hand,  and  third  persons  on  the  other  ? 

7.  What  is  the  effect  as  to  the  statute,  of  a  devise  for  payment  of  debts  ? 
From  what  considerations  does  this  doctrine  arise  ?  What  is  sufficient  to 
revive  a  debt  ?  Is  a  charge  on  the  realty  necessary  to  keep  it  alive  ?  And 
why  ?  What  is  the  effect  of  such  a  devise  on  debts  already  barred  ?  On 
debts  not  barred  ? 

8.  What  is  the  extent  of  the  principle  that  the  statute  will  not  run 
against  a  fraud  ?     What  ought  the  bill  to  allege  ?     What  is  a  good  plea  ? 

9.  How  far  does  equity  adopt  the  statute  by  analogy  ?  What  is  the  rule 
laid  down  by  the  British  courts,  and  followed  in  Elmensdorf  vs.  Taylor, 
and  that  class  of  cases? 

10.  What  is  the  duty  of  stewards,  agents,  &c,  as  to  accounts?  What 
rule  adopted  in  reference  to  it?  What  course  is  pursued  in  case  of  "  con- 
fusio  bonorum  "  by  agent  ? 

11.  Will  decree  be  rendered  for  defendant  in  any  case? 

5.  Of  Frauds. 

1.  Fraud,  how  defined?  How  far  a  subject  of  equitable  jurisdiction? 
Does  it  interfere  in  a  criminal  point  of  view  ?     What  modification  is  there 


CHAP.  21.]  THE  COMMENTARIES.  27 

of  the  doctrine  herein  ?     How  far  are  the  two  jurisdictions  concurrent  as 
to  fraud  ?     In  cases  of  bonds  ?     Of  notes  or  simple  contracts  ? 

2.  Frauds  in  relation  to  the  execution  and  validity  of  wills,  how  to  be 
tried  ?  Frauds  in  procuring  or  suppressing  a  will,  whether  wiiliin  the  pro- 
vince of  equity  ?  Mode  of  relief  in  case  of  suppression  ?  Difficulties  en- 
countered in  a  bill  to  set  up  a  destroyed  will  ?  Why  is  the  exercise  of  this 
jurisdiction  one  of  great  delicacy  ? 

3.  Frauds  in  relation  to  the  execution  of  deeds,  liow  remedied  ?  How 
in  relation  to  their  suppression?  Will  equity  aid  a  volunteer  in  recovering 
a  fraudulently  suppressed  bond  ?  Will  equity  relieve  against  fraud  in  pre- 
venting the  execution  of  deeds?  Will  it  aid  the  omission  of  a  ceremony 
required  by  law  to  give  validity  to  an  instrument,  though  it  be  occasioned 
by  fraud  ? 

4.  Give  instances  of  frauds  arising  out  of  the  suggestio  falsi,  or  sup- 
pressio  veri  I  As  to  the  first  is  the  scienter  material  ?  Is  it  material  that 
the  suggestor  be  a  contracting  party  ?  As  to  the  second,  is  a  right  to  a  fair 
and  full  disclosure  necessary  in  order  to  affect  the  other  party  with  fraud  ? 
Suppose  he  be  agent  or  trustee  ?  What  more  is  necessary  to  affect  the  par- 
ty standing  by  and  not  disclosing  his  rights  ? 

5.  Give  instances  of  frauds  growing  out  of  oppression  or  undue  in- 
fluence ?  Cases  of  parent  and  child,  guardian  and  ward,  sheriffs,  clergy- 
men ? 

6.  Give  instances  of  fraudulent  practices  on  the  imbecility  of  others  ? 
First,  natural  imbecility,  what  extent  of,  avoids  a  contract  ?  Though  par- 
tial, is  it  considered  an  important  ingredient  with  other  circumstances  ? 
Secondly,  old  age,  what  influence  has  it  on  the  question  of  validity  of  con- 
tracts ?  Thirdly,  drunkenness — doctrines  in  relation  to  it?  Fourthly,  in- 
adequate consideration  ?  What  the  general  principle  as  to  this  ?  Differ- 
ence herein  between  contracts  executed  and  executory? 

7.  What  is  the  course  of  the  court  as  to  judicial  sales  ?  As  to  sales  of 
reversions  or  expectancies  by  young  heirs? 

8.  Is  inadequacy  always  considered  an  important  ingredient  ?  How  is  it 
with  respect  to  contracts  of  hazard  which  eventually  become  greatly  profit- 
able ?  When  a  contract  is  rescinded,  is  the  property  bound  for  money 
paid  or  for  improvements  made  ? 

9.  Give  an  instance  of  underhand  agreements  ?  How  are  they  treated 
in  equity  ? 

10.  What  is  the  doctrine  as  to  purchasing  with  notice  of  an  unrecorded 
deed  ?  What  sort  of  notice  must  the  purchaser  have  ?  Is  the  record  no- 
tice, where  the  deed  has  been  recorded  out  of  time  ?  Is  there  any  differ- 
ence between  actual  and  constructive  notice  ?  [See  French  vs.  Loyal 
Company,  4  Leigh,  published  since  this  work  went  to  the  press.]  What 
is  the  effect  of  a  lis  pendens  as  notice?  What  is  a  lis  pendens?  W^hat 
essential  to  it  ? 

11.  Frauds  in  actions,  what  and  when  relieved  against  ?  Is  a  sale  upon 
a  single  bid  a  good  sale  ? 

12.  Are  infancy  and  coverture  deemed  any  excuses  for  fraud?  How 
where  the  wife  acts  sub  potestate  viri  ?  Are  interests  sustained  which  have 
been  obtained  through  the  fraud  of  third  persons  ? 

6.  Of  Discovery. 

1.  Bills  of  discovery,  what?  Distinction  between  them?  Mere  hiW  of 
discovery,  its  object  ?  Who  may  not  bring  such  a  bill  ?  Against  whom  ? 
Of  what  and  for  what  ?  How  brought  against  a  corporation  ?  What  es- 
sentials to  it — 1st.  As  to  the  materiality  of  tlie  discovery  sought?    2d.  As 


28  ANALYSIS  OF  [  BOOK  3. 

to  the  iaability  to  prove  the  facts  otherwise  ?  3d.  As  to  discovery  of  as- 
sets ?  4th.  Against  whom  it  does  not  lie  ?  Whether  it  lies  for  discovery 
of  title?  In  case  of  devisee  or  doweress  ?  5th.  Discovery  of  deeds  in  pos- 
session of  another,  in  what  cases  compelled  ?  6th.  Whether  allowed  in 
cases  of  tort — or  criminal  offence  .''  When  and  on  what  terms  in  cases  of 
penalties  and  forfeitures  ? 

2.  Must  the  bill  be  accompanied  with  affidavit  when  it  is  filed  to  set  up 
a  lost  bond,  &c.  ?  What  is  the  effect  if  the  bill  also  prays  relief?  What 
parties  are  necessary  to  this  bill  ? 

3.  At  what  time  must  it  be  brought  to  be  effectual  ?  How  is  it  finally 
disposed  oH  What  is  the  law  as  to  costs  of  these  bills  .?  When  may 
plaintiif  be  exempt  from  costs  ? 

4.  What  is  said  of  bills  for  relief  as  well  as  discovery  }  Is  the  necessity 
of  discovery  itself  a  sufficient  ground  of  jurisdiction  ?  Suppose  on  the 
hearing  it  appears  there  was  no  necessity  for  it  and  there  be  no  other  ground 
of  jurisdiction  ?     When  is  the  plaintiff  said  to  prove  himself  out  of  court? 

r.  Of  Trusts. 

1.  Trusts — by  what  rules  in  general  governed,  as  to  descents,  &c.  ?  Ef- 
fect of  union  of  legal  and  trust  estate  ?  When  will  the  equitable  estate  be 
still  considered  as  subsisting? 

2.  Who  is  considered  the  real  owner  of  a  trust  estate?  How  will  the 
estate  pass  ?  What  is  the  power  of  the  trustee,  or  the  effect  of  his  acts  or 
negligence'?     Remedies  against  him,  of  the  c.  q.  t.1 

3.  What  constitutes  a  trust?  Equitable  trusts  distinguished  from  legal? 
From  what  source  did  trusts  spring  originally?  What  are  express  trusts? 
What  implied  ?     Or  resulting  '/ 

4.  Express  trusts,  what  essential  to  their  creation  7  1st.  As  to  the  words 
used  to  create  them?  Difference  between  creation  of  trust,  and  a  mere 
naked  power i^  Consequence  of  that  difference?  Will  acts  or  omissions 
of  trustee  prejudice  the  c.  q.  t.  ?  Will  equity  interfere  in  cases  of  mere 
power  where  there  is  no  appointment?  How  where  there  is  a  trust?  Rea- 
sons for  the  distinctions  as  to  this  matter  ?  When  equity  interferes  in  ca- 
ses of  failure  to  appoint,  by  what  rule  is  it  governed?  When  will  a  be- 
quest be  considered  as  direct  and  not  as  creating  a  mere  power  to  give  to 
the  beneficiary?  When  the  duty  is  imperalivc  to  appoint,  will  equity  en- 
force it  though  there  be  no  trust? 

5.  What  is  the  object  of  most  marriage  settlements  ?  Children,  how 
considered  in  ?  Articles,  how  considered?  When  and  how  moulded  to 
suit  the  intent?  When  not?  How  do  the  issue  take  in  these  cases?  In 
what  does  the  case  of  Tabb  vs.  Archer  seem  erroneous  ? 

6.  Trusts  for  payment  of  debts,  how  looked  upon  in  equity?  When 
deemed  fraudulent  and  void?  How  where  there  is  a  power  of  revocation, 
or  of  mortgaging?  How  in  deeds  of  composition,  where  pari  only  of  debt- 
or's property  is  conveyed  /  What  is  done  where  all  tJie  creditors  do  not 
come  in  ?  When  may  subsequent  acceptance  of  the  deed  of  trust  for 
payment  of  debts  operate  to  give  it  effect  from  its  date  ? 

7.  May  a  failing  debtor  prefer  one  creditor  to  others  ?  What  is  the  ef- 
fect on  the  deed  if  it  be  obtained  by  fraud  of  the  trustee  ?  Can  a  deed 
fraudulent  in  fact  be  good  as  to  any  part?  How  if  it  be  only  constructive- 
ly fraudulent?  How  when  the  good  consideration  can  be  separated  from 
the  bad  ?  When  a  security  in  part  for  gaming  will  be  held  good  so  far  as 
it  is  for  money  bona  fide  lent,  the  creditor  being  defendant?  When  a  deed 
to  secure  several  may  be  good  as  to  some  though  void  for  the  residue  ? 

8.  How  far  is  a  trust  for  security  of  future  loans  or  renewed  negotiable 
notes  valid  1     What  caution  on  this  subject  is  suggested  ? 


CHAP.  21.]  THE  COMMENTARIES.  29 

9.  In  trusts  enacted  by  will,  wlio  is  considered  trustee  if  no  special  trus- 
tee is  named  ? 

10.  Implied  trusts.  What  is  a  resulting  trust,  and  how  does  it  arise? 
Give  instances  of  several  kinds  of.  What  essential  to  raise  resulting  trust 
where  purchase  is  made  by  one  with  another's  money'?  How  are  such 
trusts  rebutted?     Does  Virginia  statute  require  such  trusts  to  be  in  writing.? 

11.  How  are  purchases,  by  trustees  and  others,  of  encumbrances  treated 
in  equity  1     To  wlrat  cases  is  this  principle  extended'? 

12.  In  what  cases  will  a  purchase  in  the  name  of  another,  with  my  own 
money,  create  a  resulting  trust'?  When  might  it  be  considered  an  advance- 
ment? 

1-3.  How  is  it  wliere  two  purchase  jointly  with  equal  or  unequal  funds? 
How  is  a  surviving  partner  looked  on  in  England  where  the  partners  held 
real  estate  ?     How  in  Virginia? 

14.  What  other  implied  trusts  are  there  ?  How  is  it  with  the  purchaser 
from  a  trustee  with  notice  of  the  trust?  How  if  he  purchased  without  no- 
tice? What  then  amounts  to  notice  ?  On  what  does  the  doctrine  rest? 
Suppose  the  notice  sufficient  to  put  the  party  on  inquiry  ?  Give  an  instance  ? 

15.  How  many  kinds  of  notice  are  there?  What  is  actual  notice? 
How  are  vague  rumors  held  ?  What  is  constructive  notice  ?  [See  4  Leigh, 
French  vs.  Loyal  Company.]  Through  agent  or  attorney,  or  person  through 
whom  the  purchaser  promises  a  title  ?  Are  private  acts  of  assembly  notice  ? 
Is  the  recording  of  a  deed  notice  ?  How  as  to  recorded  equitable  title  with  us? 

16.  If  a  party  knows  of  the  existence  of  a  deed,  is  he  held  to  know  its 
contents?  What  is  the  doctrine  as  to  a  lis  pendens  being  notice?  What 
amounts  to  a  lis  pendens  1  What  is  the  foundation  of  the  rule  respecting- 
it  1     What  decrees  in  equity  affect  the  purchaser  under  this  doctrine  ? 

17.  When  is  a  witness  to  a  deed  nftected  with  notice?  Must  the  notice 
of  an  unrecorded  deed  be  actual  or  constructive  to  affect  the  purchaser's 
conscience  ?  Is  possession  considered  as  sufficient  to  put  the  purchaser 
on  inquiry  ? 

18.  What  necessary  to  make  a  purchaser  without  notice  ?  Why  must 
he  have  got  his  legal  title  before  notice?  Reason  of  these  principles?  Is 
a  purchaser  with  notice  from  a  purchaser  without  notice  protected  ?  How 
far  would  a  purchaser  with  notice  become  personally  liable  by  selling  the 
subject  to  a  purchaser  without? 

19.  How  far  is  the  purchaser  from  a  trustee  bound  to  see  to  the  applica- 
tion of  the  purchase  money?  Give  an  instance  ?  When  will  he  not  be 
bound  ?  Give  an  instance  ?  How%  if  it  be  to  pay  debts  o^enerally?  How 
where  bonds  are  charged  with  payment  of  annuities  ?  How,  where  there 
is  a  hand  appointed  to  receive  the  purchase  money  ?  Where  the  purchaser 
is  bound,  how  should  he  proceed? 

20.  In  what  manner  should  the  defence  of  "purchase  without  notice" 
be  made  ?  On  what  does  the  defendant  then  put  himself?  How  should 
the  plea  set  forth  the  defence? 

21.  What  implied  lien  has  the  vendor  for  the  purchase  money  ?  Does 
the  principle  apply  to  personalty  ?  Does  it  exist  where  the  vendor  has  ta- 
ken security  ?  Suppose,  however,  he  retains  the  legal  title,  though  he  has 
taken  security  also  ?  Does  it  prevail  against  a  purchaser  from  the  vendee  ? 
When  is  he  protected?  What  is  deemed  a  security  which  excludes  the 
lien?  What  is  a  waiver  of  the  lien?  How  is  it  if  the  vendor  has  taken 
an  unrecorded  mortgage  ?  Is  the  lien  as  to  purchasers  in  rem,  only,  or  in 
personam  also  ?  When  may  the  purchaser  make  himself  personally  respon- 
sible ?     May  sureties  in  a  bond  have  the  benefit  of  the  lien  ? 

22.  What  is  the  doctrine  of  equity  as  to  land  directed  to  be  converted 
into  money  or  money  into  land  ?     On  what  maxim  is  this  founded?     How 


so  ANALYSIS  OF  [  book  S. 

where  the  conversion  of  land  into  money  is  directed  for  a  specific  purpose,  and 
the  purpose  fails  or  is  otherwise  accomplished  V  What  then  is  the  privilege  of 
the  heir  herein  ?  Suppose  the  character  of  personalty  is  imperatively  fixed 
by  the  will,  but  the  whole  proceeds  are  given  to  one  person,  what  is  liis 
privilege  1  Will  the  right  of  election  be  cast  on  him  to  his  prejudice  1  How 
is  this  right  of  election  in  the  case  of  feme  coverts,  or  infants'?  Or  where 
there  are  several  beneficiaries  "? 

23.  How  does  money  pass,  which  is  directed  to  be  laid  out  in  land? 
When  and  how  may  it  receive  a  different  character?  How  will  it  be  if 
the  party  entitled  dies  without  expressing  an  intent  to  change  the  character 
which  the  property  then  has  ? 

24.  Who  is  regarded  as  the  real  owner  of  a  trust  estate?  What  are  c. 
q.  t's.  powers  and  rights  in  regard  to  it?  Can  trustee's  acts  prejudice  him? 
In  what  single  case  can  he  be  prejudiced  by  trustee's  conveyance  ?  Has  he 
then  recourse  to  the  trustee  ?  Is  his  demand  in  that  case  of  the  nature  of 
simple  contract  or  specialty? 

25.  Can  trustee  change  the  nature  of  trust  estate  in  case  of  persons  not 
sui  juris?     What  he  is  compellable  to  do,  may  he  do  without  suit? 

26.  What  is  the  effect  at  law  of  trustee's  conveyance  contrary  to  the  terms 
of  the  trust?  What  in  equity?  Suppose  he  refuses  the  trust,  what  is  the 
remedy?     Suppose  he  abuses  it,  what  is  the  remedy? 

27.  Can  a  purchase  by  a  trustee  from  the  c.  q.  t.  of  the  trust-subject  be 
sustained  under  any  circumstances?     If  any,  what? 

28.  Can  such  a  purchase  of  trust  property  sold  by  themselves  be  sustain- 
ed ?  Does  the  rule  as  to  this  vacate  the  sale  or  merely  give  election  to  c. 
q.  t.  ?  Suppose  such  sale  long  acquiesced  in  ?  What  is  the  prudent  course 
for  a  trustee  who  wishes  to  become  a  purchaser  ? 

8.  Of  Specific  Peuformance. 

1.  After  a  sale  and  before  the  legal  title  passes,  how  does  equity  look 
upon  the  parties?  How  do  courts  of  law  ?  What  is  the  effect  of  the 
death  of  either  party  on  the  contract  of  sale  ?  What  are  the  remedies  at 
law  and  in  equity  on  a  contract  to  convey  lands? 

2.  When  will  specific  execution  be  decreed?  First,  in  reference  to  the 
parties  whether  sui  juris,  or  infants,  or  femes  covert?  How  is  it  where  the 
condition  of  the  parties  is  changed  ?  Secondly,  in  reference  to  the  agree- 
ment ?  Will  specific  performance  be  decreed  in  any  case  of  a  contract  for 
chattels  ?  Give  an  instance  of  such  decree  ?  How  may  it  be  as  to  slaves  ? 
Thirdly,  in  reference  to  the  evidence  of  the  contract  ?  What  part  per- 
formance will  take  a  case  out  of  the  statute  of  frauds?  What  amounts  to 
part  execution  ?  Is  the  entry  of  sale  and  of  the  name  of  the  purchaser  by 
an  auctioneer  a  sufficient  signing  within  the  statute  ? 

3.  How  is  the  question  of  specific  performance  viewed  in  reference  to 
the  character  of  the  contract  ?  Are  such  applications  addressed  to  the 
court's  discretion  ?  Will  it  be  favourably  exercised  if  the  agreement  and 
the  evidence  of  it  be  not  certain?  Or  the  contract  illegal — or  unfair — or 
even  a  hard  one?  Or  where  the  applicant  is  a  volunteer?  Or  if  the  ap- 
plication be  unreasonable  ?  Or  if  the  party  has  been  backward  ?  Or  bro- 
ken the  contract  on  his  part  ?  Is  failure  to  pay  purchase  money  punc- 
tually a  bar  to  relief?  When  time  is  of  the  essence  of  the  contract,  will 
the  defaulter  have  aid  ? 

4.  As  to  the  capacity  to  perform  ;  will  a  substantial  performance  suffice? 
Give  instances  as  to  this  matter?  Will  a  purchaser  be  compelled  to  take 
a  defective  title  ?  Can  the  vendor  make  the  objection  that  his  title  is  in- 
complete ?     Is  it  enough  that  he  can  make  a  complete  title  at  the  time  of 


CHAP.  21.]  THE  COMMENTARIES.  81 

the  decree  ?  Does  the  court  in  this  matter  govern  itself  by  a  moral  cer- 
tainty ?  What  is  the  course  pursued  to  ascertain  whether  a  good  title  can 
be  made  1 

5.  What  covenants  may  vendee  require  ?  When  are  covenants  of  seizin 
and  for  good  title  broken  if  vendor  has  them  not?  What  covenants  will 
be  decreed  against  heirs  ?  When  may  vendor  be  decreed  to  make  a  fur- 
ther assurance  1 

6.  Is  the  purchaser  chargeable  with  interest  and  entitled  to  profits  when 
the  bargain  is  consummated  1 

9.  Of  Injunctions. 

1.  What  is  an  injunction?  Upon  what  evidence  and  terms  awarded? 
What  is  its  effect  ?  Is  notice  of  the  application  to  the  adverse  party  ne- 
cessary ?  How  is  obedience  enforced  ?  What  terms  are  imposed  generally 
v/here  it  is  granted  during  pendency  of  a  suit  to  a  proceeding  at  law?  Re- 
medy if  injunction  be  refused  by  the  Chancellor? 

2.  Under  what  circumstances  are  injunctions  granted  to  stay  waste  ?  For 
what  persons  and  against  whom  ?  When  granted  to  prevent  a  nuisance  ? 
Does  it  lie  to  undo  what  has  been  already  done  ?  When  granted  in  protec- 
tion of  patent  rights  or  copy  rights?  Is  a  distinction  recognized  between 
"pirating"  and  fair  quotation  or  abridgment?  When  granted  to  restrain 
negotiation  of  negotiable  instruments  ?  Or  pleading  an  unrighteous  plea? 
Or  proceeding  in  another  equitable  forum  ? 

3.  When  granted  to  judgments  at  law  ?  When  before  and  when  after 
trial  ?  Terms  in  such  cases  ?  Effect  of  injunction  where  execution  has 
been  levied  or  money  made  ?  Grounds  for  injunction  to  judgments  at  law  ? 
Does  the  order  operate  on  the  court  or  party  only  ?  Will  it  be  allowed  for 
the  purpose  of  ascertaining  and  settling  off  unliquidated  damages? 

4.  Will  injunction  be  allowed  to  restrain  recovery  of  purchase  money  on 
the  ground  of  defective  title  ?  Under  what  circumstances?  When  will  relief 
be  refused  ?  How  where  covenant  of  seizin  is  broken,  or  before  a  conveyance 
an  outstanding  incumbrance  is  discovered?  Or  even  after  a  conveyance, 
uader  particular  circumstances  ?  What  difficulties  are  there  as  to  relief 
where  the  question  of  title  depends  on  matter  dehors  ?  Is  the  insolvency 
of  the  vendor  an  important  ingredient  in  these  cases  ? 

5.  Will  injunction  be  allowed  to  correct  errors  committed  by  a  court  of 
law  ?  Has  there  been  no  departure  from  the  general  rule  ?  Will  it  be  al- 
lowed on  the  ground  of  surprise  on  the  trial  at  law,  where  the  party 
has  failed  to  ask  a  new  trial  in  the  court  of  law  ?  What  exception  is  found 
in  our  books  ?  Will  it  be  allowed  to  one  who  has  failed  to  defend  himself 
at  law,  or  been  negligent  and  inattentive  ?  What  exceptions  to  the  gene- 
ral rule  ? 

6.  Will  it  be  allowed  where  the  cause  has  been  fully  heard  and  decided 
in  the  court  of  law?  Suppose  it  has  not?  What  liberality  is  manifested 
as  to  pauper  suits  for  freedom  ? 

7.  When  will  it  be  allowed  for  new  matter?  Or  new  evidence  disco- 
vered since  the  trial  ?  By  the  rules  of  what  court  should  it  be  governed 
in  these  cases  ?  Will  a  bill  of  review  be  allowed  on  discovery  of  new  evi- 
dence only  ?     What  is  the  true  ground  of  a  bill  of  review  upon  facts  ? 

8.  How  is  an  injunction  bill  praying  new  trial  on  the  ground  of  new 
matter  or  evidence  to  be  supported  ?  When  is  injunction  allowed  on  tlie 
ground  of  appeal  to  defendant's  conscience  ?  When  allowed  for  excessive 
damages  ? 

9.  In  what  cases  will  injunction  be  granted  to  protect  property  taken 
by  execution  against  a  third  person  ?      What  are   bills  quia   timet,  and 

VOL.  2— C8 


32  ANALYSIS  OF  [  BOOK  3. 

when  are  they  proper?     Arc  they  applicable  to  bonds  with  collateral  con- 
dition ? 

10.  VV^hat  remedy  has  a  surety,  where  the  creditor  enters  into  new  ar- 
rangement with  the  ])rincipal  ?  What  must  be  the  nature  and  effect  of 
the  act  so  as  to  discharge  the  surety  ?     Reasons  of  this  doctrine  of  equity  ? 

11.  What  are  bills  to  perpetuate  testimony — and  their  object  ?  What 
are  bills  of  peace,  and  when  are  they  entertained?  What  are  bills  of  in- 
terpleader? And  the  rules  respecting  them,  and  mode  of  proceeding  un- 
der them  ?     What  is  the  rule  as  to  costs  in  these  cases? 

12.  Bills  for  protection  of  property  in  litigation  ;  when  do  they  lie  and 
what  is  their  object?  Bills  praying  ??e  exeat,  their  object?  When  and  on 
what  terms  is  a  ne  exeat  allowed  ? 

13.  When  may  defendant  move  to  disprove  ?  What  weight  is  attributed 
to  the  answer  when  responsive  to  the  bill  ?  Suppose  the  matter  of  the  an- 
swer is  affirmative?  Or  evasive  1  Or  contradicted  by  two  credible  witnes- 
ses, or  by  one  witness  and  strong  circumstances.?  Suppose  the  case  set 
down  by  the  plaintiff  upon  bill  and  answer  without  replication  ?  How  is 
the  answer  regarded  on  the  motion  to  dissolve  before  replication?  What 
other  rules  are  laid  down  as  to  these  matters  ? 

14.  When,  if  there  be  several  defendants,  may  dissolution  be  moved  on 
the  answer  of  one  ?  Is  the  answer  of  one  on  decree  pro  confesso  against 
one,  evidence  against  others  ?  Is  the  answer  of  obligee  acknowledging 
gaming  consideration,  evidence  against  assignee  1 

15.  How  far  is  an  answer  to  be  read  when  it  is  introduced  as  evidence  on  a 
trial  at  law  ?     What  is  its  weight  there  ? 

16.  What  provision  is  made  as  to  dismission  of  dissolved  injunctions? 
How  is  an  abated  injunction  to  be  revived  ?  How  is  a  motion  to  reinstate 
to  be  made  ?  Are  costs  given  on  dissolution  before  final  hearing  ?  What 
is  the  course  where  plaintiff  desires  to  appeal  from  dissolution  ?  What  is 
the  effect  of  such  appeal  ? 

10.  Of  Avoiding  Illegal  Contracts. 

Will  equity  interfere  to  set  aside  contracts  against  law,  though  both 
parties  are  criminal  ?     On  what  principle  ? 

11.  Of  Contribution. 

1.  Is  the  doctrine  of  contribution  known  to  the  common  law?  What  is  the 
usual  remedy  now?  What  necessary  to  be  shewn  in  a  bill  for  contribution.? 

2.  Will  a  creditor's  agreement  to  charge  the  parties  rateably  be  enforced? 
Is  the  principle  inapplicable  where  sureties  agree  to  pay  in  certain  propor- 
tions? Does  it  apply  where  one  injustice  ought  to  pay  all?  As  in  case 
of  a  supplemental  surety  ?  Or  where  the  second  surety  enables  the  prin- 
cipal to  suspend  the  recovery  from  himself? 

3.  How  is  this  remedy  applicable  between  legatees,  co-heirs,  and  the 
like  ?  Or  in  charges  upon  lands  ?  Or  to  repairs  of  a  joint  property,  or  party 
wall?  Does  it  apply  as  between  wrongdoers'?  On  what  does  the  princi- 
ple of  contribution  rest?  How  is  it  where  the  parties  are  not  in  equali 
jure?  In  what  light  are  successive  purchasers  looked  on,  at  law  and  in 
equity? 

12.  Of  Substitution  or  Subrogation. 

1.  Give  instances  of  the  equitable  doctrine  of  substitution  ?  As  between 
creditors  and  securities  7  Is  the  right  reciprocal  ?  Is  a  creditor  bound  to 
pursue  his  mortgage  lien  before  lie  can  resort  to  the  surety? 


CHAP.  22.]  THE  COMMENTARIES.  33 

2.  Is  a  surety  who  pays  off  a  bond  in  the  obligor's  lifetime  entitled  to  be 
subrogated,  as  a  specialty  creditor?  How  if  after  his  death  7  Or  during 
his  life  and  after  judgment  ?  Has  the  right  of  subrogation  been  denied 
where  by  payment  the  creditor  has  no  longer  a  subsisting  right  of  action  ? 
See  3  Con.  Ch.  Rep.  665. 

3.  When  is  the  surety  entitled  to  charge  the  heir  by  substitution  ?  Give 
an  instance  of  subrogation  between  the  sureties  themselves.  How  is  it  be- 
tween assignors  and  assignees  ?  In  case  of  assignments  to  several  of  se- 
veral bonds  secured  by  the  same  deed  of  trust,  which  has  preferable  right  to 
payment  ? 

13.  Want  of  Remedy  at  Law. 

What  is  the  principle  of  this  ground  of  jurisdiction  ?  Suppose  the  mat- 
ter disclosed  by  the  bill  be  solely  cognizable  at  law,  how  is  the  objection 
made  ? 

14.  Of  Statutory  Jurisdiction. 

What  six  instances  of  statutory  jurisdiction  are  enumerated  here  ? 

15.  Of  Jurisdiction  in  Ecclesiastical  Causes. 

To  what  subject  is  this  jurisdiction  confined?  What  are  the  present 
provisions  of  our  law  as  to  divorces? 

Chapter  XXII. — Of  the  mode  of  proceeding  in  Equity. 

1.  How  is  a  suit  in  equity  commenced?  What  is  the  general  frame  of 
the  bill?  What  is  the  general  rule  as  to  parties?  What  exceptions  are 
mentioned  ?  How  to  proceed  where  some  interested  parties  refuse  to  join 
as  plaintiffs  ?  May  the  objection  for  want  of  formal  parties  be  waived  ? 
When  is  a  bill  referred  for  scandal  or  impertinence  ?  What  is  the  subpoe- 
na ?     Does  it  issue  in  fact  before  or  after  bill  filed? 

2.  When  is  a  party  said  to  be  in  contempt  ?  How  do  you  proceed  against 
him  ?  When  may  the  bill  be  taken  pro  confesso  ?  If  taken  pro  confesso 
against  one  and  defended  successfully  by  another  jointly  concerned  in  inter- 
est, what  decree  will  be  entered  as  to  both  ? 

3.  What  is  the  process  against  a  corporation  ?  Effect  of  service  on  the 
proper  officer?     What  is  the  proceeding  against  absentees? 

4.  How  does  the  defendant  make  defence?  What  is  the  nature  of  a  de- 
murrer? Of  a  plea?  Of  an  answer?  When  may  discovery  be  demurred 
to  ?  How  should  the  defendant  answer  ?  What  are  exceptions  to  answer  ? 
Can  defendant  have  a  decree  for  relief?  What  is  the  object  of  a  cross 
bill  I 

■  5.  How  may  bill  be  amended  or  revived  if  abated  ?  Or  new  matter  brought 
forward?  What  is  a  bill  of  interpleader?  V/hat  affidavit  must  be  annex- 
ed to  it? 

6.  When  may  the  cause  be  properly  tried  on  bill  and  answer?  Weight 
of  the  answer  in  that  case  ?  And  why  ?  When  is  it  advisable  to  reply  > 
How  are  depositions  taken  ?  And  returned  ?  How  is  the  cause  set  for  hear- 
ing? And  tried  ?  How  is  the  testimony  of  old  witnesses  perpetuated  ? 
W^ho  pays  costs  in  such  cases  1     How  is  a  cross  cause  brought  on  ? 

7.  Of  what  two  kinds  are  the  chancellor's  decrees  ?  W^hat  is  interlocu- 
tory? What  final?  What  is  a  feigned  issue?  Has  the  court  power  to 
refer  a  question  of  law  to  the  general  court  for  its  decision  ?  How  are  ac- 
counts taken  ? 


34  ANALYSIS  [  BOOK  3. 

8.  What  is  the  effect  of  the  answer?  Reason  of  the  weight  attributed 
to  it?  Howif  its  statements  be  affirmative?  Or  matter  of  avoidance?  Or 
evasive?  Or  doubtful?  Or  contradictory?  Or  contradicted  in  any  one 
point  by  adequate  testimony? 

9.  If  discovery  is  the  sole  ground  of  jurisdiction  and  the  facts  are  denied 
by  answer,  what  is  the  consequence  ?     Can  the  plaintiff  prove  his  bill  ? 

10.  Is  the  answer  of  one  evidence  against  another  1  How  may  evidence 
of  one  defendant  betaken  against  another?  How  may  defendant  take  the 
deposition  of  a  plaintiff?  How  may  plaintiff  proceed  to  get  deposition  of 
co-plaintiff? 

IJ.  What  is  the  law  as  to  costs  ?  On  demurrer  to  jurisdiction  sustained  ? 
Where  a  "  fund"  is  the  subject  of  suit?  In  cases  of  injunction  and  per- 
petuation in  part  ?  In  bills  to  foreclose  and  redeem?  In  specific  perform- 
ance against  heirs?     In  case  of  parlies  erroneously  made  so  by  order  ? 

12.  How  is  the  decree  enforced?  How  may  the  cause  be  reheard  or  de- 
cree be  renewed?  How  may  the  party  grieved  obtain  an  appeal  i  Is  new 
evidence  admitted  on  an  appeal  ? 

[The  word  "  Blackstone's  "  in  the  head  lines  to  the  Analysis  of  the 
Commentaries  in  the  first  volume,  should  not  have  been  placed  there  :  the 
Analysis  being  for  the  work  of  which  it  forms  a  part.] 


APPElVDIi:  TO  BOOK  il« 


THE    OPINION 


CHANCELLOR  TUCKER, 


Case  of  selden  and  others  against  the  overseers  of  the 
poor  of  loudoun  and  another. 


The  case  which  is  presented  by  the  bill  appears  to  nie  to  involve,  unavoida- 
bly, the  discussion  of  the  great  question  of  the  constitutionality  of  the  law  for 
the  sale  ofthe  Glebe  lands,  in  the  commonwealth  of  Virginia.  It  has,  indeed, 
been  distinctly  announced  in  the  argument  of  the  case,  that  this  suit  has 
been  instituted  with  the  express  view  of  having  an  adjudication  upon  that 
litigated  question  ;  and  though  it  is  more  than  probable,  that,  under  no  as- 
pect,  can  the  present  bill  be  sustained,  yet  I  have  no  disposition  to  shrink 
from  the  expression  of  my  own  opinions  upon  the  subject.  I  could  have 
wished,  indeed,  that  the  task  had  devolved  upon  abler  hands  than  mine, 
and  the  rather,  as  I  have  long  had  some  pre-conceived  notions  in  relation 
to  it.  I  am  consoled,  however,  by  the  reflection,  that,  as  this  cause  is  not 
to  end  here,  any  errors  of  my  own  will  be  corrected  by  that  tribunal  to 
whose  opinions  we  must  all  bow  with  submission. 

In  the  examination  of  this  subject.  I  propose  to  institute,  in  the  first 
place,  some  inquiry  into  the  ecclesiastical  establishment,  and  its  component 
parts,  according  to  the  principles  of  the  common  law,  and,  secondly,  ac- 
cording to  the  acts  of  the  colonial  legislature. 

Preparatory  to  this  inquiry,  it  may  be  remarked,  that,  in  England,  the 
erection  of  all  corporations  is  by  the  king's  assent  either  expressly  or  im- 
pliedly given.  That  assent  is  expressly  given,  either  by  royal  charter,  or 
by  act  of  parliament,  which  receives  the  royal  assent.  It  is  considered  as 
impliedly  given,  in  the  case  of  those  corporations  whose  existence  is  im- 
memorial, and  become  part  of  the  common  law.  See  I  Black.  Com.  472. 
We  may,  therefore,  assume,  in  this  discussion,  that  corporations  could  only 
exist  in  Virginia,  before  the  revolution,  by  the  king's  charter,  by  statute,  or 
by  common  law.  Since  the  revolution,  ail  powers  of  incorporation  belong 
exclusively  to  the  legislature.  But  as  in  the  case  of  Terret  vs.  Taylor,  9 
Cranch,  it  is  laid  down  that  even  in  Virginia  a  parson  is  a  sole  corporation, 
and  as  that  matter  appears  to  be  very  material  to  the  present  discussion,  I 
shall  proceed  to  inquire  how  far  the  ecclesiastical  establishment  is  a  corpo- 
ration, even  according  to  the  principles  of  the  common  law. 

And  here,  in  the  first  place,  it  is  to  be  observed,  that  the  Church  of 
England,  (and,  a  fortiori,  the  Episcopal  church  in  Virginia,)  is  not,  and 
never  was,  a  common  law  corporation.  The  Church  of  England  is  not  de- 
graded to  the  rank  of  a  corporation — it  is  one  of  the  estates  of  the  realm* 
A  bishop,  or  a  parson,  is  a  corporation,  says  Mr.  Blackstone,  but  tho 


2  APPENDIX. 

church  is  not.  1  Bla.  Com.  472.  And  to  the  same  effect  we  have  the 
opinion  of  the  supreme  court.  9  Cranch,  3'25-6.  Still  less  could  the 
church,  in  Virginia,  constitute  a  corporation,  by  common  law.  If  we  are 
to  look  upon  it  in  any  other  light  than  as  the  creature  of  the  legislature, 
we  must  regard  it  as  a  scion  of  the  Church  of  England,  which  withered  on 
the  stem  when  the  parent  stock  was  uprooted  by  the  revolution.  In  that 
aspect,  it  may,  perhaps,  have  been  considered  as  forming  a  part  of  the  dio- 
cess  of  the  bishop  of  London,  since  all  lands  in  Virginia  were  held  of  the 
crown,  as  of  the  manor  of  East  Greenwich.  Be  this  as  it  may,  even  that 
connection  was  severed  by  the  revolution  ;  and  neither  before  nor  since 
was  the  Episcopal  church,  in  Virginia,  a  common  law  corporation. 

Nor  were  the  Vestries  of  the  paris^hes  corporations  by  the  common 
law.  The  vestries  of  parishes  were,  originally,  only  meetings  of  the  minis- 
ters, church  wardens,  and  chief  men,  and  every  parishoner  who  was  asses- 
sed to,  and  paid  church  rates,  was  entitled  to  sit  in  the  vestry.  See  2  Ld. 
Ray.  1388.     2Stra.  6-24.     8  Mod.  52,  351. 

Church  Wardens  were,  for  some  purposes,  a  kind  of  corporation  at 
common  law  ;  to  have  property  in  goods  and  chattels,  but  as  to  lands,  and 
other  real  property,  they  had  no  sort  of  interest  therein.     1  B.  C.  394. 

But  though  neither  the  church  itself,  nor  its  vestry  and  wardens,  were 
corporations,  yet  bishops  and  parsons  were  such  by  the  common  law.  As 
such,  we  are  told,  they  never  die.  But  whether  they  die  or  not,  in  their 
corporate  character,  still,  upon  the  natural  death  of  one  parson,  his  place 
could  only  be  supplied  by  the  presentation,  institution,  and  induction  of 
another.  And  in  like  manner,  the  creation  of  a  bishop,  who  is  to  supply 
a  vacancy  in  the  bishoprick,  requires  election,  confirmation,  consecration, 
and  installation.     3  Salk.  72.     See  also  2  Wils.  181. 

Admitting,  then,  that  bishops  and  parsons  were  sole  corporations  in  Vir- 
ginia, as  well  as  in  England,  the  question  recurs — "  How  was  the  vacancy 
to  be  supplied,  in  Virginia,  upon  the  death  of  the  incumbent." 

First:  As  to  the  Bishop.  Before  the  revolution  there  was  no  bishop  in 
Virginia  ;  and  there  never  was  an  arch-bishop  among  us.  At  the  date  of 
the  Declaration  of  Independence  we  were  without  either  of  these  high 
dignitaries  of  the  church.  Nor  was  the  colony  of  Virginia  ever  a  bishop- 
rick. Bishopricks  were  by  the  creation  of  the  crown,  and  all  "  the  bishop- 
ricks  in  England  are  of  the  king's  foundation,  and  he  is  the />a//"o?t  of  them 
all."  Co.  Litt.  94.  Every  new  bishop  was  thus,  in  fact,  a  nevr  corporation 
sole,  who  could  only  be  created  by  the  crown,  or  by  act  of  parliament. 
Nor  is  it  matter  of  wonder,  that  this  power  was  retained  by  the  civil  au- 
thority, instead  of  being  left  to  the  exercise  of  the  church.  For  this  cor- 
poration, a  bishop  becomes  upon  his  installation  not  only  invested  with 
high  ecclesiastical  powers,  but  he  is  endowed  with  extensive  revenues  and 
temporalities,  as  well  as  spiritualities.  He  is,  by  force  of  his  office  of 
bishop,  the  ordinary,  with  jurisdiction  over  wills  and  testaments  ;  and,  as 
judge  of  the  ecclesiastical  court,  lias  cognizance  of  matrimonial  and  other 
causes  pertaining  to  ecclesiastical  law.  He  has,  moreover,  the  power  of 
ordaining  ministers,  destined  themselves  to  constitute  an  inferior  corpora- 
tion, with  like  immortality  to  that  of  the  bishop  himself,  and  with  the  right 
to  hold,  for  life,  the  Glebe  attached  to  their  parish  church,  as  and  for  their 
ireehold,  with  the  privilege  of  exacting  tithes,  and  other  ecclesiastical 
dues. 

With  this  view  of  the  powers  of  a  bishop  when  created,  and  the  mode 
of  his  creation,  we  may  venture  to  ask — "  How  comes  Virginia  by  a  bish- 
op?" The  answer  is,  "She  has  none."  By  courtesy,  indeed,  certain 
eminent  divines,  selected,  and  so  styled  by  their  brethren,  are  denominated 
bishops;   but  legally  speaking  wn  linve   none.     Before  the  revolution,  as  I 


APPENDIX. 


3 


have  already  said,  it  is  not  pretended  that  Virginia  had  a  bishop,  or  was  a 
bishoprick.  After  the  Declaration  ot  Independence,  if  the  power  existed  any 
where  to  erect  this  commonwealth  into  a  bishoprick,  and  to  create  this  new 
corporation,  (a  bishop,)  with  all  his  common  law  powers  and  attributes, 
that  power  must  have  been  vested  in  the  legislature  alone.  Could  it  have 
been  in  the  archbishop  of  Canterbury,  by  whom,  I  presume,  the  late  most 
estimable  Mr.  Madison  was  consecrated  ?  Or  can  it  now  be  in  the  bishops 
of  adjoining  states,  who  have  consecrated  the  present  venerable  Bishop 
Moore,  and  his  most  highly  respected  suffragan  ? 

To  suppose  such  a  power  in  the  dignitaries  of  the  Church  of  England, 
is  at  war  with  the  whole  principles  of  the  revolution.  That  revolution 
broke  the  power  of  the  British  king:  It  dissolved  forever  his  authority 
over  this  commonwealth.  The  political  union  of  the  two  countries  was  at 
an  end.  Neither  parliament  nor  king  had  any  longer  power  here.  And 
if  the  sceptre  of  the  monarch  cannot  reach  across  the  Atlantic,  can  the 
crozier  of  the  archbishop  ?  If  its  powers  are  wrested  from  the  state,  do 
they  still  remain  vested  in  the  church,  which  in  England  clings  to  it  like  a 
parasitical  plant,  thus  forming  in  effect  a  part  of  that  very  government 
whose  yoke  has  been  thrown  off?  Such  pretensions  are  too  monstrous  to 
find  an  advocate  ;  and,  accordingly,  I  do  not  understand  it  to  be  contended, 
even  by  the  most  zealous  votary  of  the  church,  that  those  whose  virtues 
and  acquirements  have  elevated  them  to  the  dignity  of  bishops,  in  the 
Episcopal  church  here,  are  recognised  as  such  by  law.  They  are  entitled, 
indeed,  to  our  highest  respect  as  holy  men  ;  and  to  our  veneration  as  pious 
ministers  of  the  gospel ;  but  like  the  bishops  of  the  Methodist  church,  they 
are  only  bishops  by  courtesy.  Their  only  power  is  in  the  voluntary  submis- 
sion of  the  members  of  their  society ;  their  only  authority  is  derived  from 
the  regulation  of  conventions;  (bodies  equally  unknown  to  the  law  with 
themselves  ;)  their  only  influence  is  the  powerful  influence  of  religion,  sus- 
tained and  enforced  by  their  virtues  and  their  piety  ;  by  their  learning,  their 
eloquence,  and  their  zeal.  To  the  law  they  are  unknown,  except  that, 
like  the  humblest  of  the  ministers  of  the  most  humble  dissenting  congre- 
gation, they  are  protected  from  insult  and  contumely  when  engaged  in 
religious  service.  They  are  invested  with  the  power  of  solemnizing  mar- 
riages, and  they  are  excluded  from  a  participation  in  the  legislative  power. 
In  every  other  aspect  they  are,  legally  speaking,  non  entities,  (or  I  would 
rather  say,  non  existences,)  without  rights,  without  privileges,  without  du- 
ties, capacities,  or  incapacities. 

We  come  next  to  the  case  of  the  Parson.  The  first  requisites  to  con- 
stitute a  parson  are,  by  common  law,  a  parish  and  a  church.  VVithout  these, 
there  can  be  no  parson;  for  a  parson  is  "one  who  is  in  holy  orders,  who 
hath  full  possession  of  all  the  rights  of  a  parochial  church,  and  he  is  so 
called  because  he  is  persona  ecclesiee."  Co.  Litt.  300.  1  Bla.  Com.  381. 
Now  it  is  obvious,  that,  at  the  first  settlement  of  Virginia,  there  were  no 
parishes.  Those  which  have  been  laid  off  derived  their  existence  from 
legislative  provision  alone.  Consequently,  there  could  not  have  been  any 
such  thing  as  a  parson  in  Virginia,  until  parishes  were  established  by  the 
legislature;  and  hence,  it  is  obvious,  that  the  ministers  recognised  by  law, 
before  the  revolution,  derived  their  existence,  not  from  the  common  law, 
but  mediately  from  the  statute  law. 

Parishes,  however,  having  been  at  length  established,  and  the  ecclesias- 
tical system  of  England  forming  part  of  the  common  law,  it  is  probable 
that  the  appointment  of  ministers  to  particular  parishes,  might  have  consti- 
tuted that  sole  corporation  denominated  "  a  parson,"  if  all  the  other  requi- 
sites of  the  common  law  could  have  united  in  him.  Moreover,  Glebes 
having  been   purchased,  the  possession  of  them,  I  presume,  would  have 


4  APPENDIX. 

vested  in  the  incumbent  parson,  and  his  successors  ;  for,  according  to  the 
common  law,  the  corporation  could  never  die.  But  in  order  to  all  this,  it 
was  necessary  that  there  should  be  a  common  law  parson.  A  legislative 
minister  would  not  constitute  the  sole  corporation  known  to  the  common 
law  as  the  parson  of  the  parish.  Let  us  then  see  what  were  the  requisites 
to  the  creation  of  a  common  law  parson. 

I.  The  first  was  holy  orders;  and,  by  the  ecclesiastical  law,  a  priest,  (so 
the  parson  was  called  before  induction,)  could  only  be  ordained  by  a  bishop. 
For  this  doctrine,  it  is  believed,  the  clergy  of  the  Protestant  Episcopal 
church,  at  this  day,  very  strenuously  contend,  though  it  is  as  strenuously 
opposed  by  the  members  of  other  congregations.  It  is  not  my  purpose  to 
enter  upon  the  consideration  of  this  litigated  question,  in  any  other  than 
a  legal  point  of  view.  In  that  aspect,  there  can  be  no  doubt  that  ordina- 
tion, by  a  bishop,  was,  at  common  law,  required  to  constitute  a  priest,  and 
a  priest  so  ordained  was  necessary  to  constitute  a  parson. 

From  this  position  it  may  not  be  improper,  at  once,  to  deduce  these  co- 
rallaries : 

1.  That,  since  the  revolution,  there  cannot  have  been  any  priest  ordained 
in  Virginia,  according  to  the  common  law.  For  as  there  is  no  bishop  in 
Virginia — as  English  bishops  cannot  now  ordain  Virginia  priests — and,  as 
even  legally  speaking,  there  can  be  no  priest  except  through  Episcopal 
ordination,  it  is  impossible  there  should  have  been  a  legally  ordained  priest 
in  Virginia  since  the  revolution. 

2.  This  consequence  will  equally  follow,  whether  the  act  of  1661,  ch.  3, 
be  considered  as  repealed  or  not.  That  act  provided  that  "  no  minister 
should  be  admitted  to  the  church,  except  such  as  could  produce  a  testimo- 
nial of  ordination  by  a  bishop  in  England!"  For  my  own  part,  I  do  not 
hesitate  to  affirm  that  this  act  was  repealed  ipso  facto  by  the  revolution. 
It  lashed  us  to  the  ecclesiastical  polity  of  Great  Britain.  It  made  us, 
in  so  far  a  ramification  of  the  church  of  England  ;  of  that  church  the  mem- 
bers of  which  were  all  united  in  one  common  head — the  king;  who  has 
been  recognised,  ever  since  the  reformation,  as  the  supreme  head  of  the 
church.  And  when  the  lashings  were  cut  away,  which  bound  us  to  the 
state,  we  were  also  cut  loose  forever  from  the  church.  When  the  head  was 
cut  off,  I  cannot  conceive  that  this  member,  (the  Episcopal  church  in  Vir- 
ginia,) thus  lopped  from  the  parent  stock,  continued  in  existence,  and  still 
less  that  its  union  with  the  Church  of  England  so  far  remained  as  to  require 
or  to  justify  ordination  of  their  bishops.  But  be  this  as  it  may,  the  conse- 
quence is  the  same.  If  the  law  be  repealed  then  there  can  be  no  legal  ordi- 
nation under  it;  and  I  have  shewn  that  there  can  be  no  common  law  ordi- 
nation in  Virginia,  at  this  time,  for  want  of  a  bishop.  If  the  law  be  not 
repealed,  then  it  may  be  safely  affirmed  that  there  is  not,  at  this  time,  a  le- 
gally ordained  minister  under  it,  in  the  state  of  Virginia ;  as  I  presume 
there  is  not  now  living  a  single  minister  who  received  his  ordination  from 
the  hands  of  an  English  bishop.  In  any  aspect  then,  it  is  obvious  that 
there  is,  at  this  time,  no  minister  in  the  Episcopal  church  in  Virginia,  or- 
dained according  to  the  law  of  the  land,  whether  common  or  statutory  : 
and  hence  it  would  seem  that  the  very  first  requisite,  in  the  creation  of  a 
parson,  is  utterly  unattainable. 

II.  The  second  requisite  to  the  creation  of  a  parson  is  presentation. 
This  belonged  to  a  patron  in  England,  but  was  given  by  (he  act  of  1748, 
ch.  28,  to  the  vestries,  whose  appointment  was  first  directed  in  1661.  And 
as  the  vestries  were  elected  by  the  parishoners,  the  parson,  instead  of  being 
presented  by  a  patron,  (as  at  common  law,)  was  in  effect  mediately 
elected  by  the  people,  in  direct  hostility  with  common  law  principles. 


APPENDIX.  O 

III.  The  third  requisite  to  the  creation  of  a  parson,  is  institution  ;  and 
this  is,  when  the  bishop  invests  the  minister  with  tlie  spiritual  part  of  the 
benefice  ;  1  Burns  Ecc.  L.  148;  saying  to  him,  "  Jnstituo  te  rectorum  talis 
ecclesice  cum  cura  animarum  accipe  curain  ttiam  et  meani."  Co.  Lilt.  344. 
This  ceremony  of  institution  might  also  have  been  performed  by  the  bishop 
under  the  Episcopal  seal. 

IV.  The  last  requisite  to  the  creation  of  a  parson  was  induction.  It 
was  this  which  made  the  parson  complete  incumhQnt,  and  fixed  the  freehold 
in  him,  4  Rep.  79.  Plow.  529,  and  this  was  performed  by  a  mandate /row 
the  bishop  to  the  archdeacon,  who  usually  commissioned  some  clergyman 
to  do  it  for  him.  1  Bl.  Com.  391.  From  this  it  is  obvious  that  no  power, 
foreign  to  this  commonwealth,  could  have  the  power  of  creating  them  sole 
corporati(>ns,  since  such  power  could  give  them,  indirectly,  a  power  over 
landed  estates  of  the  country. 

It  will  not  be  assuming  too  much  to  affirm,  that  the  bishop,  who,  by  the 
common  law,  was  thus  the  instrument  of  institution  and  induction,  was  of 
necessity  the  bishop  of  that  diocese  within  which  the  cure  was ;  for  it 
would  have  introduced  confusion,  and  been  at  war  with  the  organization 
of  the  ecclesiastical  establishment,  if  the  bishop  of  one  diocese  could  have 
instituted,  and  inducted,  a  parson  into  the  benefice  of  another.  Hence, 
unless  Virginia  can  be  shewn  to  be  a  bishoprick,  it  would  seem  impossible 
that  there  could  be  such  a  thing  as  institution,  and  induction,  on  common 
law  principles. 

This  short  recurrence  to  the  antiquated  law  of  this  subject,  will  serve  to 
shew  that  there  never  could  have  been,  in  Virginia,  such  a  corporation  sole, 
as  a  common  law  parson ;  and  certainly  there  never  can  be  now,  without 
the  aid  of  some  legislative  act.     For 

1.  First,  as  I  have  already  endeavoured  to  shew,  holy  orders  can  no  lon- 
ger be  conferred,  in  Virginia,  in  the  manner  required  by  common  law. 

2.  Presentation  never  could  have  been  made,  on  common  law  principles ; 
because  the  presentation  was  by  statute,  to  be  made  by  the  vestry  to  the 
governor,  (a  civil  officer,)  instead  of  by  a  patron  to  the  bishop,  an  ecclesi* 
astical  dignitary;  there  being,  indeed,  no  bishop  to  whom  presentation 
could  be  made. 

3.  Institution  being  the  act  of  a  bishop,  and  there  being  no  bishop  in 
Virginia,  there  could  be  no  common  law  institution  ;  nor,  indeed,  do  I  per- 
ceive any  substitute  provided  by  statute,  for  this  essential  and  spiritual  part 
of  the  ceremony  of  creating  a  parson. 

4.  Induction  being  the  act  of  the  archdeacon,  or  his  committee,  under 
authority  from  the  bishop,  there  could  be  no  common  law  induction,  as 
there  was  no  bishop,  and  no  archdeacon.  The  substitute  provided  by  law 
was  induction  by  the  governor.  But  though  this  statutory  induction  created 
a  statutory  minister,  it  did  not  constitute  a  common  law  parson. 

With  due  submission,  therefore,  to  the  high  authority  which  pronounced 
the  decision  of  Terret  us.  Taylor,  there  never  was,  in  Virginia,  either  before 
or  since  the  revolution,  such  a  corporation  sole  as  a  common  law  parson. 

The  truth  is,  the  whole  ecclesiastical  system,  in  Virginia,  though  con- 
nected before  the  rovolution  with  the  establishment  of  the  Church  of  Eng- 
land, was  evidently  built  up  by  the  early  practices  of  the  settlers,  or  by 
legislative  regulation.  It  is  a  statutory  system,  in  contradistinction  to  a 
common  law  system.  It  was  a  public  civil  institution,  ordained  by  the 
government  for  public  purposes,  instead  of  being  a  private  ecclesiastical 
establishment;  or,  like  the  Church  of  England,  a  co-ordinate  and  co-equal 
estate  of  the  realm. 

This  view  of  the  subject  will  enable  us  to  form  proper  conceptions  of 
the  legal  characters  of  preachers  of  the  gospel.     They  were,  before  the 


6  APPENDIX. 

revolution,  statutory  ministers,  not  common  law  parsons.  By  an  early  act, 
places  of  worship  were  ordered  to  be  set  apart,  in  each  plantation,  and 
ministers  were  directed  to  perform  divine  service  to  the  people.  This  was 
among  the  first  steps  in  the  establishment  of  this  public  institution, /or 
the  purpose  of  inculcatins;  the  principles  of  genuine  piety  and  morality 
among  the  people  of  each  division  of  the  colony.  Then  it  was  provided  that 
ministers  should  be  ordained  by  a  bishop  in  England,  and  be  presented  by 
the  vestry,  and  inducted  by  the  governor.  The  vestry  were  to  be  elected 
by  the  parishoners,  and  were  empowered  to  purchase  Glebes  with  public 
funds,  to  be  raised  by  levy  on  all  persons,  of  whatever  denomination,  in  the 
parishes  ;  and  in  like  manner  to  erect  houses,  &c.  for  the  comfortable  ac- 
commodation of  the  minister  of  the  parish.  For  his  support  a  certain 
•compensation,  ^xerf  by  laio,  was  to  be  raised  by  levy  on  all  the  parishoners  ; 
but  no  tithes  were  provided  for  him,  for  these  seem  to  have  been  regarded 
as  alien  to  the  system. 

These  positions,  then,  I  consider  as  established. 

1.  That  the  common  law  ecclesiastical  system  was,  in  effect,  abolished; 
and  a  statutory  system  substituted  by  the  colonial  legislature. 

2.  That  the  system,  such  as  it  was,  was  a  public  institution,  established 
for  great  public  purposes,  and  sustained  by  public  funds. 

Having  shewn,  I  think,  that  there  never  has  been,  in  Virginia,  such  a 
corporation  sole  as  at  common  law,  it  follows  undeniably,  that  there  could 
be  no  vested  right  in  the  Glebes,  unless  such  right  can  be  traced  to  some 
statutory  provision.  We  proceed,  therefore,  to  examine,  in  the  first 
place — 

The  laws  anterior  to  the  revolution.  These  merely  authorised  the  lay- 
ing out,  and  purchase  by  the  vestries,  of  Glebes  for  the  accommodation  of 
ministers.  In  the  case  of  Terret  vs.  Taylor,  it  is  truly  said,  that  a  deed  for 
Jand  so  purchased  could  not  be  taken  by  the  church  wardens,  who  are  only 
empowered,  by  common  law,  to  take  personal  estate.  But  the  law  having  di- 
rected the  appointment  of  twelve  vestrymen,  and  provided  for  keeping  their 
numbers  full,  and  having  also  directed  them  to  purchase,  they  were  capable 
to  take  to  them,  and  their  successors,  for  the  purposes  declared  by  the  law. 
But  this  power  did  not  constitute  them  a  corporation  any  more  than  the 
power  vested  in  the  justices  of  a  county  court  to  purchase  a  site  for  the 
public  buildings.  Vestrymen  were,  in  fact,  public  officers,  appointed 
by  law,  with  various  public  duties,  most  of  which  have  been  transferred  to 
the  overseers  of  the  poor.  As  public  officers,  they  were  invested  with 
power  to  purchase  and  hold,  for  special  purposes,  and  they  were  no  more 
created  corporations  thereby,  than  the  governor,  because  he  can  take  an 
official  bond  :  or  the  justices,  because  they  can  purchase  for  public  build- 
ings ;  or  overseers  of  the  poor,  who  are  sometimes  empowered  to  buy  land 
for  the  use  of  the  poor,  or  to  erect  poor  houses  instead  of  renting  them. 
They  were  trustees,  indeed,  because  they  were  empowered  to  take  a  title, 
not  for  their  own  benefit,  but  for  other  purposes;  and  those  purposes  were 
public  purposes;  as,  indeed,  they  ought  to  have  been,  as  the  property  was 
purchased  out  of  public  funds. 

I  will  here  remark,  that  in  all  cases  of  purchase  by  the  vestries,  the  legal 
title  ought  to  have  been  conveyed  to  them,  for  they  were  the  persons  au- 
thorised to  purchase;  and,  of  consequence,  to  take.  And  here,  again,' we 
plainly  discover  the  difference  between  the  rights  of  the  common  law  par- 
son, and  the  statutory  minister.  The  common  law  parson  takes  the  legal 
title  himself,  to  him  and  his  successors.  The  statutory  minister  had  but  an 
equitable  title  for  his  own  life,  the  vestry  holding,  as  trustees,  for  his  benefit. 
Upon  his  death  the  vestry  continued  to  hold  tvs  trustees,  until  a  new  minister 
was  inducted.     There  was  no  abeyance  of  the  freehold,  as  in  the  case  of 


APPENDIX.  7 

the  Glebe,  at  common  law  ;  and,  moreover,  as  the  fee  was  in  these  trustees, 
for  whose  perpetual  continuance  the  law  had  provided,  there  was  no  ne- 
cessity that  the  minister  should  be  a  corporation  sole,  to  keep  alive  the 
rights  of  the  church.  To  pursue  the  distinction  somewhat  farther:  The 
common  law  parson  formed  a  component  part  of  ecclesiastical  polity — the 
statutory  minister,  [for  he  is  no  where  called  a  parson,)  was  a  public  servant^ 
the  creature  of  the  legislature.  Both  were,  indeed,  connected  with  the 
state.  But  the  parson,  as  part  of  that  establishment,  which  is  said  to  be 
one  of  the  estates  of  the  realm,  was  connected  with  the  head  of  the  church, 
(the  crown,)  while  the  minister  was  dependent  on  the  colonial  legislature, 
and  fed  by  their  hands.  He  did  not  receive  the  cure  of  souls,  and  the  pos- 
session of  the  church,  from  the  hands  of  a  spiritual  pastor,  upon  the  pre- 
sentation of  a  patron  ;  but  he  was  an  officer  of  the  public,  appointed  for 
public  instruction,  elected  by  the  people,  (through  the  vestry,)  recommend- 
ed by  the  vestry  to  the  governor,  (the  highest  civil  officer  in  the  state.) 
He  received  from  his  unholy  hands,  authourity  to  preach  in  the  parish,  to 
receive  the  salary  raised  from  the  public  by  a  general  levy,  and  to  occupy 
the  Glebe  purchased  with  the  public  funds,  extorted  from  dissenters  as  weU- 
as  levied  from  the  members  of  the  church.  In  such  a  minister  we  recog- 
nise not  a  single  feature  of  the  common  law  parson,  save  the  performance 
of  the  ministerial  function.  But  we  do  recognise  in  him  every  characteris- 
tic of  ^public  officer.  He  was  appointed  by  the  public,  for  the  discharge 
oi  public  duties,  with  an  obligation  to  perform  them,  and  a  right  to  receive 
the  emoluments  arising  therefrom. 

But  though  the  statutory  ministers  were  not  corporations  sole,  and  had 
no  legal  estate  vested  in  them,  yet  upon  their  appointment  as  officiating 
ministers  of  any  particular  parish,  they  became  invested  with  the  right  to 
receive,  during  life,  the  profits  of  the  Glebes  which  were  held  by  the  vestry 
for  their  benefit.  This  right  was  a  vested  right.  But  here  we  must  advert 
to  the  distinction  between  ministers  who  were  incumbent  at  the  date  of  the 
revolution,  and  those  who  have  become  officiating  ministers  since.  The 
former  were  regularly  ordained  according  to  law  by  a  bishop  of  England. 
They,  therefore,  were  capable  of  being  ministers  in  the  parishes  ur^d^er  the 
act  of  1661.  The  latter  never  were  legally  ordained  by  a  bishop  in  Eng- 
land, and  under  that  act  were  expressly  excluded  from  the  ministry,  and 
even  if  that  act  be  repealed,  (as  I  presume  it  is,)  then,  there  being  no  legal 
mode  of  ordination  prescribed,  and,  indeed,  no  bishop  to  perform  the 
ordinances,  they  never  could  have  been  legally  ordained.  The  ante- 
revolutionary  ministers  were  moreover  regularly  presented  by  the  ves- 
tries to  the  governor,  and  inducted  by  him,  according  to  law,  into  the 
possession  ot  the  church,  together  with  the  Glebe  and  the  mansion  ;  and 
it  is  this  induction  which  makes  the  parson  incumbent,  and  fixes  the  freehold 
in  him.  4  Rep.  79.  Without  this  induction  his  right  is  not  vested.  And 
when  was  the  last  instance  of  presentation  to  the  governor,  and  induction 
of  the  minister  by  him  into  the  rights  of  the  church  ?  A  post-revolution- 
ary instance  if  this  ceremony  cannot,  I  think,  be  produced.  Those  who 
have  been  put  into  possession  of  the  Glebes  since  the  revolution,  would  be 
intruders  with  no  right  at  all,  instead  of  having  vested  rights  which  even  the 
sovereign  power  cannot  touch :  unless,  indeed,  some  post-revolutionary 
statute  shall  have  authorised  the  induction  of  ministers,  (ordained  without 
law,  or  against  law,)  by  the  officers  of  the  church,  instead  of  the  authority 
of  the  governor. 

From  this  difference  between  the  ante-revolutionary  and  post-revolu- 
tionary ministers,  results  an  obvious  distinction  as  to  the  measures  that 
might  fairly  and  legitimately  be  adopted  in  relation  to  them.  The  ante-re- 
volutionary minister  having,  upon  the  faith  of  the  law,  qualified  himself  by 


8  APPENDIX. 

ordination  by  an  English  bishop,  and  having  acquired  vested  rights  by  his 
induction,  good  faith  required  that  these  vested  rights  should  be  respected  : 
and  so  they  have  been  ;  for  the  act  of  1802  not  only  saves  the  rights  of  in- 
cumbents of  this  description,  but  of  all  incumbents  anterior  to  the  passage 
of  that  act ;  whereas  it  is  obvious,  from  what  has  been  said,  that  no  post- 
revolutionary  minister  could  have  acquired  a  vested  right  in  the  Glebe  of  a 
parish,  which  the  legislature  was  bound  to  regard.  They  have  thus  shewn 
not  only  a  spirit  of  justice,  but  of  moderation  and  forbearance,  which  is 
deserving  of  the  highest  praise,  instead  of  meriting  the  reproach  of  having 
trampled  upon  the  rights  of  a  respected  portion  of  the  community. 

Nor  must  we  omit  to  advert  to  another  consequence  of  the  changes  pro- 
duced by  the  revolution.  The  vestry,  we  have  seen,  was  a  public  body, 
invested,  as  trustees,  with  certain  real  estates  for  public  purposes,  which 
estates  were  purchased  with  public  funds.  Now,  upon  the  death  of  the 
ante-revolutionary  minister,  as  there  could  be  no  legally  ordained  minister 
since  the  revolution,  for  whose  benefit,  or  for  what  use,  did  these  trustees 
continue  to  hold  the  estates  ?  Not  for  their  own,  for  they  were  never  de- 
signed to  be  the  beneficiaries.  Not  for  the  church  as  such,  for  the  church 
is  incapable  of  taking  in  that  character.  See  9  Cranch,  29-2.  Not  for  the 
"  society  of  the  Episcopal  church  in  each  parish,"  nor  for  "  the  parishion- 
ers of  each  parish;"  for  the  law  will  not  permit  "societies/'  or  "parish- 
ioners," to  take  real  estate  in  any  such  character,  unless  incorporated. 
There  was  not,  and  could  not  be,  any  legally  recognised  cestui  que  trust — 
and,  as  the  trust  was  declared  for  public  purposes,  and  the  estates  were 
raised  out  of  public  funds;  as  no  individual  had,  in  them,  a  vested  right, 
nor  any  recognised  association  of  individuals  an  interest;  the  trust  was 
revocable  by  the  legislature,  see  9  Cranch,  52.  And  they  had,  therefore,  a 
moral  right,  as  well  as  the  sovereign  power,  to  declare  other  trusts  of  the 
property.  See  what  is  said,  9  Cranch,  335,  as  to  the  legislative  power, 
where  the  trust  fails  by  reason  of  the  omission  to  establish  a  church.  See 
also  Middleton  vs.  Spicer.  Brown's  C.  R.  overruling  Burgess  vs.  Wheat, 
as  to  the  escheat  of  a  trust  to  the  crown. 

In  the  further  prosecution  of  this  subject,  I  shall  assume,  that  the  ante- 
revolutionary  statutes  which  compelled  persons  of  every  religious  sect,  or 
denomination,  to  contribute  to  the  purchase  of  Glebes  for  the  Episcopal 
ministers,  were  tyrannical  and  oppressive,  and  invasions  of  the  rights  of 
religious  liberty,  and  freedom  of  opinion  in  matters  of  conscience :  that  if 
so,  they  ought  to  have  been  repealed  out  and  out  as  soon  as  our  shackles 
were  broken  by  the  revolution,  and  we  were  left  free  to  act  upon  the  liberal 
principles  avowed  by  the  then  sovereign  state  of  Virginia,  in  her  constitu- 
tion and  bill  of  rights. 

I  have  said  I  shall  assume  these  positions,  because  I  presume  there  is  no 
one  at  the  present  day  who  will  be  bold  enough  to  contend  that  the  citizen 
can  rightfully  be  compelled  to  support  a  minister  of  the  gospel  of  a  persua- 
sion different  from  his  own.  If  such  there  be,  I  shall  content  myself  with 
referring  him  to  his  own  bosom  to  determine,  whether  in  his  own  case,  he 
would  not  deem  such  an  attempt  an  invasion  of  the  dearest  privilege  that 
belongs  to  a  reflecting  being.  And  when  he  has  examined  himself  truly, 
I  would  then  ask,  in  the  strong  language  of  the  act  for  establishing  religious 
freedom,  whether  "  to  compel  him  to  furnish  contributions  for  ihe  propa- 
gation of  opinions  which  he  disbelieves,  is  not  sinful  and  tyrannical?"  If 
it  be,  then  was  it  sinful  and  tyrannical  to  compel  contributions  to  the  church, 
according  to  the  provisions  of  the  ante-revolutionary  acts.  By  these  pro- 
visions the  Papist  was  forced  to  contribute  to  the  maintenance  of  an  Epis- 
copalian, whom  he  deemed  an  heretic  ;  the  Covenanter  was  called  upon 
to  support  a  hierarchy  which  ho  considered  in  the  gall  of  bitterness  and" 


APPENDIX.  9 

bond  of  iniquity ;  and  Methodists,  and  Baptists,  and  Quakers,  and  every 
other  dissenting  congregation,  were  taxed  to  support  the  minister  of  an 
establishment  which  they  regarded  as  their  persecutor.  No  minister  was 
permitted  to  enjoy  a  living  in  any  parish,  unless  he  had  been  ordained  by  a 
British  bishop,  even  though  the  parishioners  were  dissenters  to  a 
MAN  ;  and  yet  all  denominations  were,  for  an  hundred  years,  taxed  to  sup- 
port ministers  of  that  description,  and  the  levies  for  the  purchase  of  Glebes, 
for  the  ttse  exclusively  of  one  denomination  of  Christians,  icere  raised  un- 
sparingly from  all.  It  is  said,  indeed,  that  the  portion  thus  levied  on 
dissenters  was  small.  Of  this,  I  am  not,  perhaps,  a  competent  judge. 
But  it  is  certain  that  there  were,  in  Virginia,  long  anterior  to  the  purchase 
of  the  Glebe,  in  1773,  large  congregations  of  dissenters,  with  pious  and 
learned  pastors  at  their  head.  While,  therefore,  I  do  not  pretend  to  esti- 
mate the  proportion,  I  am  inclined  to  believe  that  it  was  not  inconsiderable. 
Be  this  as  it  may,  I  am  clearly  of  opinion  that  the  character  of  the  law  does 
not  depend  upon  the  number  of  the  oppressed,  but  upon  the  nature  of  the 
oppression.  And  let  it  be  remarked,  that  if  we  are  to  declare  the  ante-re- 
volutionary acts  tolerant  and  forbearing,  and  the  act  of  1802  unconstitution- 
al and  void,  because  it  may  have  happened  that  there  were  but  few  dissenters 
in  Loudoun,  the  precedent  might  be  brought  to  bear  in  districts  where  they 
were  far  more  numerous.  Thus  we  all  know  that  the  Presbyterians  were  a 
flourishing  sect  in  another  part  of  the  colony,  under  the  powerful  ministry 
of  Samuel  Davis,  and  others,  who  constituted  what  was  called  the  Presby- 
tery of  Hanover.  Yet  however  numerous  they  might  have  been,  they  were 
forced  by  the  ante-revolutionary  laws,  in  addition  to  their  voluntary  contri- 
butions to  their  own  minister,  to  contribute  to  the  salary  of  the  Episcopal 
minister.  They  were  also  compelled  to  pay  for  the  purchase  of  a  Glebe  of 
200  acres  at  least,  and  for  the  erection  of  buildings  upon  it  for  his  accom- 
modation, although  between  the  ministers  of  the  church  of  England  and 
themselves  there  existed  at  that  time  inveterate  antipathies,  which  nothing 
has  been  so  successful  in  reconciling  as  the  annihilation  of  all  distinctions, 
in  point  of  privileges,  between  the  various  denominations  of  Christians  in 
Virginia.  For  such  acts  there  is  no  appellation  more  fit  than  that  employ- 
ed in  the  act  of  1785.     They  were  sinful  and  tyrannical. 

Such,  then,  being  the  character  of  these  acts,  let  us  next  inquire  what 
was  the  effect  of  the  revolution  upon  them  ?  Its  spirit  was  in  direct  colli- 
sion with  them  all ;  its  operation  was,  in  effect,  a  silent  repeal  of  some  of 
them.  Thus  the  same  stroke  which  severed  us  from  the  monarchy  anni- 
hilated forever  all  connection  between  the  ecclesiastical  establishment  here 
and  the  church  of  England ;  for  that  church  is  intimately  connected  with 
the  state,  and  has  the  king  for  its  head,  whose  authority  we  had  thrown  off. 
It  required  then,  I  conceive,  no  specific  act  of  legislation  to  repeal  the  act 
of  1661,  ch.  3,  which  required  all  ministers  to  be  ordained  by  an  English 
bishop. 

There  were  other  laws,  however,  relating  to  the  establishment,  which 
may  not,  perhaps,  have  been  repealed  ipso  facto  by  the  revolution ;  such, 
perhaps,  were  the  laws  authorizing  the  vestries  to  purchase  and  hold  the 
Glebes  for  the  use  of  the  ministers,  and  directing  the  purchase  money  to  be 
levied  indiscriminately  on  dissenters  and  churchmen.  Yet  what  was  the 
duty  of  the  first  revolutionary  legislature  in  relation  to  these  tyrannical  laws  ? 
That  which  is  the  imperious  duty  of  every  legislature  in  relation  to  every 
oppressive  and  tyrannical  law.  Their  duty  was  to  repeal  them.  The 
rights  of  religious  liberty  had  been  outraged  for  a  century.  Large  sums 
had  been  raised  for  the  support  of  one  denomination  of  Christians,  by 
an  indiscriminate  levy  on  all,  and  annual  contributions  still  continued  to 
be  enforced.  What  ought  the  legislature  to  have  done  7  They  ought  to 
2 


10  APPENDIX. 

have  done,  at  the  earliest  date  of  our  national  e:^istence,  what  was  cnlpa- 
bly  postponed  until  the  act  of  1802.  They  ought  not  only  to  have  exempt- 
ed dissenters  from  a\\  future  contributions  to  the  church,  but  to  make  amends 
for  the  past,  as  far  as  that  was  practicable,  by  selling  the  Glebes  and  ap- 
propriating the  money  to  the  use  of  the  parishes.  Even  this  would  have 
fallen  far  short  of  retribution  ;  for  there  could  be  no  restoration  of  the  ex- 
torted annual  contributions  of  the  century  preceding. 

Conscious  of  the  tyranny  of  the  existing  system,  the  legislature  did,  by 
the  act  of  1776,  exem.pt  dissenters  from  future  contributions.  Was  this 
law  the  subject  of  animadversion  because  it  thus  interfered  with  the  vested 
rights  of  the  minister  and  the  Episcopal  parishioners  ?  It  is  believed  not. 
I  apprehend  it  was  universally  and  cheerfully  acquiesced  in,  because  it  was 
obviously  not  the  divesting  of  a  right,  but  the  removal  of  a  wrong.  It  is  a 
perversion  of  terras  to  speak  of  a  vested  right,  where  the  act  out  of  which 
the  supposed  right  has  grown  was,  in  itself,  an  original  outrage  upon  the 
religious  liberties  of  the  people. 

But  the  legislature  of  177(3  stopped  here.  If  they  had  carried  out  their 
principles,  they  would  have  gone  on  to  direct  a  sale  of  the  Glebes  for  the 
common  benefit  of  all.  For  if  it  was  a  wrong  to  levy  an  annual  contribu- 
tion on  dissenters,  it  was  equally  a  wrong  to  levy  the  purchase  money 
of  the  Glebes  upon  them.  If  it  was  right  to  exempt  them  from  the  an- 
nual contributions,  it  would  have  been  right  to  restore,  as  far  as  they  could, 
what  had  been  extorted  to  pay  for  .the  Glebes.  But  instead  of  redressing 
this  gross  injustice,  the  act  of  177G  reserved  the  Glebe  lands  to  the  church, 
though  they  exempted  dissenters  from  further  contributions.  This  can  be 
accounted  for,  when  we  recollect  that  that  act  was  passed  amidst  the  throes 
of  the  revolution  ;  and  that  policy  might  have  prevented  a  measure  calcu- 
lated to  excite  disaffection  among  the  most  numerous  denomination  of 
Christians  in  the  infant  state. 

When  the  revolution  was  over,  the  legislature  of  17S4,  under  the  influ- 
ence of  causes  I  am  not  old  enough  to  explain,  passed  the  act  for  the  in- 
corporation of  the  vestries  and  ministers  of  the  respective  parishes  ;  there- 
by rivetting  the  injury  which  had  been  done  by  the  ante-revohjtionary  acts, 
and  extending  the  evil,  by  erecting  these  numerous  corporations.  Of  this 
act  it  is  sufficient  to  say,  that  it  was  contrary  to  the  spirit  of  our  new  insti- 
tutions;  it  was  calculated  to  perpetuate  the  wrong  which  had  been  done 
by  the  ante-revolutionary  acts  ;  and,  if  they  ought  to  have  been  repealed, 
"as  sinful  and  tyrannical,"  it  ought  to  have  shared  the  same  fate. 

I  should  imagine  this  act  must  have  occasioned  much  excitement  in  Vir- 
ginia, since  it  was  in  the  following  year  that  the  legislature  passed,  in  a 
very  different  spirit,  the  act  for  establishing  religious  freedom.  The  rays 
of  religious  liberty  seemed  to  have  daWned  upon  the  people,  and  this  act 
was  the  morning  star  which  ushered  in  the  meridian  light  which  has  fol- 
lowed. The  first  of  the  succeeding  acts,  was  the  act  of  1786.  It  made 
haste  to  repeal  so  much  of  the  act  of  1784  as  had  established  an  invidious 
distinction  between  sects  of  religion,  by  the  incorporation  of  the  Episco- 
pal church.  It  was  enacted  at  a  time  when  Virginia  was  a  free  and  inde- 
])endent  state,  possessed  of  every  attribute  of  sovereignty  ;  and,  among 
these,  of  the  sovereign  authority  to  dissolve  corporations.  See  1  Bl.  Com. 
485.  It  was  passed  by  this  ancient  commonwealth  at  a  time  when  she 
was  untrammelled  by  any  engagement  which  placed  limitations  upon  her 
authority,  and  when  she  recognized  the  right  of  no  power  upon  earth  to 
say  unto  her  "  what  dost  thou  ?"  Hence,  even  though  the  act  in  question 
had  been  an  invasion  of  the  rights  of  one  portion  of  the  people,  instead  of 
being,  as  it  was,  a  mere  act  of  justice  to  another,  it  was,  nevertheless,  an 
act  of  sovereign  authority,  which  none  could  call  in  question.     It  was  bind- 


APPENDIX. 


11 


ing  on  every  citizen  of  the  state,  and  was  at  least  as  valid,  to  take  away 
the  rights  of  the  church,  as  the  acts  of  1696,  and  1727,  had  been  to  take 
away  the  property  of  the  dissenters  !  The  legislature  of  1786  did  not, 
however,  carry  out  the  principles  of  religious  liberty  to  their  just  conse- 
quences. Thus,  instead  of  reclaiming  for  the  benefit  of  all  the  property 
which  had  been  bought  by  the  contributions  of  all,  they  "saved  to  all  reli- 
gious societies  the  property  to  them  belonging,"  authorizing  them  to  ap- 
point trustees,  who  are  declared  capable  of  managing  and  applying  such 
property  to  (he  religious  use  of  such  societies.  What  was  the  effect  of 
this  reservation  ? 

Here  it  must  be  observed,  that  the  act  of  1784,  by  its  express  incorpora- 
tion of  the  vestries  and  ministers,  superseded  the  powers  of  the  vestries  un- 
der former  laws,  and  substituted  this  incorporation  for  those  former  laws. 
Hence,  when  this  incorporation  was  repealed,  there  was  no  longer  any 
ground  for  the  pretence  that  the  vestries  were  corporations  under  the  ante- 
revolutionary  provisions.  Their  powers  had  been  swallowed  by  the  incor- 
porating act  of  1784,  and  had  been  destroyed  when  it  was  repealed. 

But  it  is  contended  that  the  saving  in  the  act  preserved  the  rights  of  the 
church.  To  this  I  answer,  that  the  saving  was  void;  as  was  also  the 
saving  in  the  act  of  1776,  ch.  2,  Oct.  session,  to  which  allusion  has  already 
been  made  ;  and  this  1  take  to  be  equally  clear,  whether  we  consider  the 
proviso  to  be  of  the  nature  of  a  saving  or  of  a  grant. 

Now  there  is  no  principle  in  the  law  more  clear  than  that,  in  every  grant, 
there  must  not  only  be  a  grantor  and  thing  granted,  but  a  grantee  capable 
to  take.  And  if  there  be  such  uncertainty  as  to  the  grantee  that  it  cannot 
be  known  distinctly  who  is  to  take  under  the  grant,  it  is,  ipso  facto,  void, 
for  uncertainty.  This  is  equally  the  case  with  the  grant  of  the  crown,  or 
of  the  parliament,  as  with  that  of  a  private  man  ;  for  it  results  from  the 
utter  impossibility  of  effectuating  the  grant  by  reason  of  the  undefined 
character  of  the  grantee.  Hence  we  find  it  laid  down  by  the  earliest  wri- 
ters, that  a  grant  to  the  parishioners  of  Dale  is  void,  for  it  is  impossible  to 
say  who  are  to  have  the  benefit  of  it.  Nay,  more,  as  the  parishioners  of 
Dale  arc  not  corporate,  and  enabled  to  take  in  a  corporate  character,  the 
grant,  (if  it  enured  at  all,)  must  enure  to  each  parishioner  in  his  natural 
character,  since  he  has  none  other  in  which  to  take.  The  absurdity  of  such 
a  grant  may  be  sufficiently  exposed,  by  a  slight  attention  to  its  operation 
in  the  case  of  the  reservation  of  the  Glebes  to^the  religious  society  denomi- 
nated the  Protestant  Episcopal  church.  In  ihe  first  place,  that  society  be- 
ing no  longer  incorporated,  a  grant  to  the  society  would  operate,  (if  at  all,) 
as  a  grant  to  them  not  in  their  character  of  a  society,  but  to  each  indivi- 
dual in  his  natural  character,  liable  to  partition,  subject  to  debts  and  charges, 
and  transmissible  to  heirs,  or  assigns,  for  their  own  use,  and  not  for  the 
use  of  the  church.  In  the  second  place,  the  persons  in  whom  the  right 
would  thus  vest,  would  continue  under  all  circumstances  owners,  unless 
they  voluntarily  aliened.  The  title  being  once  in  them  could  not  pass  out 
of  them  without  their  deed.  So  that,  although  a  parishioner  removed  to 
another  parish,  or  although  he  should  become  the  convert  to  another  sect, 
his  title  would,  in  effect,  remain  in  him,  in  spite  of  his  having  ceased  to  be 
a  member  of  the  religious  society  of  the  Episcopal  church. 

If,  indeed,  we  could  suppose  it  otherwise,  the  consequences  would  be 
yet  more  absurd.  The  title  would  be  in  a  perpetual  state  of  flux.  What 
belonged  to  A  to-day,  would,  by  his  removal  from  the  parish,  or  apostacy 
from  the  church,  cease  to  be  his  to-morrow  ;  whereas  B,  by  removal  to  the 
parish,  or  apostacy  to  the  church,  might,  by  the  converse  of  the  principle, 
acquire  to-morrow  a  right  which  he  has  not  to-day.  Moreover,  who  would 
be  the  legally  constituted  triers  of  the  facts  of  apostacy,  or  conversion, 


12  APPENDIX, 

whereby  one  rnan  is  to  gain,  or  another  is  to  lose,  the  estate.  Who,  in- 
deed, constitutes  the  society  ?  Are  all  who  have  been  baptised  into  that 
church,  within  the  meaning  of  the  statute,  or  those  only  who  are  received 
as  members,  by  an  union  in  its  most  solemn  ordinances  ?  These,  and  a 
multitude  of  like  difficulties,  present  themselves  to  the  notion  of  any  grant, 
or  conveyance,  to  a  religious  society,  or  to  trustees  for  their  use.  For  in 
the  eye  of  the  law  the  intervention  of  a  trustee  does  not  remove  a  single 
difficulty.  There  is  not  more  necessity  for  a  properly  defined  grantee  in  a 
deed,  than  for  a  cestui  que  trust,  who  is  capable  of  taking,  and  who  is  so 
defined  and  pointed  out  that  the  trust  will  not  be  void  for  uncertainty.  The 
trustee  takes  no  beneficial  interest  whatever.  The  nomination  of  him  is 
little  more  than  matter  of  form.  But  if  the  cestui  que  trust  is  uncertain, 
or  incapable,  the  declaration  of  trust  is  void,  and  if  void,  then  the  trust  re- 
sults, and  the  trustee  himself  has  no  manner  or  pretence  of  title. 

Considerations  such  as  these  have  produced  an  uniform  determination 
in  the  courts,  (except  so  far  as' in  England,  or  in  the  Eastern  states,  chari- 
table gifts  are  provided  for,)  that  grants,  devises,  and  conveyances,  of  this 
indefinite  character,  are  void.  See  1  Hen.  &  Mun.  470.  4  Wheat.,  Bap- 
tist asso.  vs.  Harts,  &,c.  4  Mun.  1.  There  is  not  a  religious  society  in  Vir- 
ginia which  has  not  felt  the  difficulty,  nay  the  impossibility,  of  any  valid  and 
binding  arrangement  of  their  property  for  the  uses  of  their  sects.  All  are 
compelled  at  last  to  depend  upon  the  good  faith  and  solvency  of  those  to 
whom  conveyances  are  made,  or  who  may  be  considered  as  legally  entitled  ; 
since  their  breach  of  faith,  or  insolvency,  would  inevitably  defeat  the  objects 
of  the  association  by  whom  they  have  been  intrusted. 

It  is  material  to  observe,  in  connection  with  this  part  of  the  subject,  that 
no  vested  right  ever  can  arise  under  such  indefinite  grants.  The  uncertain- 
ty of  the  person  to  whose  benefit  the  grant  is  to  enure,  is  as  fatal  to  the  no- 
tion of  the  vesting  of  a  right,  as  it  is  to  the  idea  of  the  validity  of  the  grant. 
And  this  is  equally  true,  whether  the  grantee  is  to  take  immediately,  or 
through  a  trustee  ;  for  though,  in  the  latter  case,  the  title  indeed  may  vest 
in  the  trustee,  yet  it  is  a  mere  naked  title,  without  an  interest — a  trust  re- 
sulting to  the  grantor.  To  whom  it  resulted  in  the  present  instance  will 
be  hereafter  explained. 

From  the  foregoing  investigation  I  deduce,  that,  independent  of  the  acts 
of  1798  and  1801,  the  rights  of  the  society  known  in  common  parlance 
as  the  Protestant  Episcopal  church,  were  completely  annihilated  by  the 
act  of  1786 — an  act  passed  in  the  plentitude  of  the  power  of  our  venerat- 
ed commonwealth,  when  her  sovereignty  was  untrammelled,  and  her  will 
alone  determined  the  validity  of  her  laws;  yet  passed  in  conformity  with 
the  dictates  of  justice  and  of  duty,  under  the  influence  of  a  spirit  of  mo- 
deration for  which  she  has  always  been  distinguished,  and  at  the  sugges- 
tions of  a  wise  and  prudent  policy,  to  extinguish  those  sparks  of  religious 
discord  which  were  in  danger  of  being  blown  into  a  flame  by  the  act  of 
1784.  If  I  am  right  in  these  deductions,  it  is  clear  that  the  question  in 
this  case  is  not  touched  by  the  constitution  of  the  United  States,  which  was 
not  adopted  until  two  years  afterwards  ;  and  hence,  it  will  be  equally  clear, 
that  this  is  a  subject  over  which  the  supreme  court  of  the  United  States  have 
no  manner  of  jurisdiction. 

I  shall  proceed,  however,  more  particularly  to  consider  the  acts  of  1798 
and  1802,  and  the  question  of  their  constitutionality.  And  here  I  shall 
advert,  first,  to  the  meritorious  objects  of  those  acts;  and,  secondly,  to  the 
moderation  and  propriety  of  their  provisions. 

1.  The  object  of  the  acts  in  question  is  very  forcibly  pointed  out  by  their 
respective  preambles.     The  preamble  of  the  act  of  1799  is  in  these  words: 

"  Whereas,  the  constitution  of  the  state  of  Virginia  hath  pronounced  the 
government  of  the  king  of  England  to  have  been  totally  dissolved  by  the 


APPENDIX.  IS 

revolution  ;  hath  substituted,  in  place  of  the  civil  government  so  dissolved, 
a  new  civil  government ;  and  hath,  in  the  bill  of  rights,  excepted  from  the 
powers  given  to  the  substituted  government,  the  power  of  reviving  any  spe- 
cies of  ecclesiastical  or  church  government,  in  lieu  of  that  so  dissolved,  by 
referring  the  subject  of  religion  to  conscience;  and  whereas,  the  several 
acts  presently  recited,  do  admit  the  church  established  under  the  regal  go- 
vernment to  have  continued  so  subsequently  to  the  constitution  ;  and  be- 
stowed property  upon  the  church  ;  have  asserted  a  legislative  right  to  esta- 
blish any  religious  act ;  and  have  incorporated  religious  sects  ;  all  of  which 
is  inconsistent  with  the  principles  of  the  constitution,  and  of  religious  free- 
dom, and  manifestly  tends  to  the  re-establishment  of  a  national  church: — 
For  prevention  whereof,"  &c. 

It  then  proceeds  to  repeal  the  whole  of  the  laws  upon  the  subject,  sub- 
sequent to  the  revolution. 

The  preamble  of  the  act  of  1802,  (which  passed  and  took  effect  on  the 
12th  of  January  in  that  year,)  is  in  these  words  : 

"  Whereas,  the  general  assembly,  on  the  twenty-fourth  day  of  January, 
one  thousand  seven  hundred  and  ninety-nine,  by  their  act  of  that  date,  re- 
pealed all  the  laws  relative  to  the  late  Protestant  Episcopal  church,  and  de- 
clared a  true  exposition  of  the  principles  of  the  bill  of  rights  and  constitu- 
tion, respecting  the  same,  to  be  contained  in  the  act  entitled,  '  An  act  for 
establishing  religious  freedom,'  thereby  recognizing  the  principle,  that  all 
property  formerly  belonging  to  the  said  church  of  every  description,  devolv- 
ed on  the  good  people  of  this  commonwealth,  on  the  dissolution  of  the 
British  government  here,  in  the  same  degree  in  which  the  right  and  inte- 
rest of  the  said  church  was  derived  therein  from  them  ;  and,  although  the 
general  assembly  possesses  the  right  of  authorizing  a  sale  of  all  such  pro- 
perty indiscriminately,  yet,  being  desirous  to  reconcile  all  the  good  people 
of  this  commonwealth,  it  is  deemed  inexpedient  at  this  time  to  disturb  the 
possession  of  the  present  incumbents." 

It  would  be  superfluous  to  add  any  thing  to  the  forcible  exposition  con- 
tained in  these  two  preambles,  of  the  reasons  which  influenced  the  legis- 
lative body  to  pass  these  acts.  I  have  already  attempted  to  show  that  the 
ante-revolutionary  acts,  in  so  far  as  they  compelled  dissenters  to  pay  for 
Glebes  for  ministers  of  the  church,  were,  in  the  language  of  the  act  of 
1785,  "sinful  and  tyrannical;"  and  that  it  was  and  always  has  been  the 
duty  of  the  legislative  body  to  repeal  these  "sinful  anc  tyrannical  acts," 
and  to  redress  so  far  as  may  be,  the  wrongs  which  they  had  inflicted  ;  that 
this  imperious  duty  had  been  imperfectly  performed  by  the  legislatures  an- 
terior to  1786,  and  that  even  the  legislation  of  that  year  had  contained 
provisions,  which,  whether  effectual  or  not,  were  evidently  incompatible 
with  the  very  principles  of  the  act  itself.  To  restore  things  as  near  as 
might  be  to  their  proper  state  ;  to  redress  the  wrong  done  to  the  sense  of 
religious  liberty  of  every  dissenter,  even  though  it  were  impossible  to  re- 
store their  property  to  those  identically  from  whom  it  had  been  arbitrarily 
wrung  ;  to  extinguish  the  embers  of  religious  discord,  and  the  jealousies  of 
contending  sects,  by  placing  all  upon  an  equal  footing,  and  to  cherish  among 
them  the  practice  of  Christian  forbearance  and  charity — these  were  among 
the  considerations  which  demanded  of  the  general  assembly  the  enaction 
of  the  laws  of  1798  and  1802. 

2.  The  provision  of  the  last  of  these  acts  for  the  sale  of  the  Glebe  lands, 
is  distinguished  by  a  moderation,  propriety,  and  sagacity,  corresponding 
with  the  just  sentiments  which  had  given  rise  to  its  passage.  It  provided 
for  the  sale  of  the  Glebe  lands — 

1.  Only  in  case  of  vacancy,  thus  duly  respecting  the  rights  of  the  per- 
sons then  incumbent. 


14  APPENDIX. 

2.  Subject  to.  the  debts  of  the  parish,  and  leases  made  by  the  trustees. 

3.  And  it  directed  the  money  to  be  appropriated  for  the  benefit  of  the 
poor  of  the  parish,  "  or  to  any  other  objects  which  a  majority  of  the  free- 
holders and  housekeepers  in  the  parish  might  direct,  excepting  religious 
objects  ;"  an  exception  which  justice  to  the  Episcopalians  required,  since 
in  most  parishes  they  would  have  probably  been  out-voted  on  the  question 
of  the  disposition  of  the  funds,  if  the  act  had  permitted  an  appropriation 
to  religious  purposes. 

4.  The  churches  and  church  yards  were  respected. 

5.  Private  donations,  prior  to  1777,  (where  there  is  any  person  in  being 
entitled  to  take  the  same  under,  that  is,  as  heir  to  any  private  donor,)  are 
excepted. 

6.  Property  acquired  by  donations,  or  subscriptions,  since  that  date,  are 
respected  and  excluded. 

This  law,  I  contend,  was  constitutional  as  well  as  politic  and  wise.  For 
it  does  not  touch  the  right  of  the  incumbent,  with  whom  a  contract  for  life 
was  made  by  the  public  agents,  (the  vestries,)  under  public  authority,  be- 
fore the  revolution,  or  since  the  revolution,  (whether  regularly  or  not,)  by 
the  vestries  or  trustees  of  the  church.  It  cannot  break  in  upon  rights  of 
any  future  parson,  because  no  such  right  is  vested.  It  was  no  infraction  of 
the  rights  of  parishioners,  both  because  being  a  public  establishment,  it  was 
under  public  regulation  and  controul,  and  because  the  proceeds  were  ap- 
propriated to  their  use,  under  their  direction,  with  a  single  restriction  cal- 
culated to  prevent  feuds,  and  preserve  harmony  and  peace,  among  the 
several  religious  denominations. 

To  examine  this  question,  however,  more  narrowly,  let  us  consider  the 
validity  of  this  act. 

1.  In  regard  to  the  principle  that  corporations,  or  other  institutions,  es- 
tablished for  public  j)urposes,  and  appropriating  the  funds  of  the  people  for 
public  benefit,  are  always  under  the  controul  of  the  legislature,  and  subject 
to  be  moulded  by  them  according  to  the  suggestions  of  their  wisdom  and 
discretion.  Such  was  the  establishment  of  the  Episcopal  church,  both  be- 
fore and  since  the  revolution.  Though  a  scion,  indeed,  of  the  church  of 
England,  it  became  the  creature  of  the  legislature  by  its  acts.  Its  organi- 
zation and  structure  ;  the  mode  of  supporting  it,  (by  a  general  tax,  in  lieu 
of  tithes  ;)  the  appointment  of  its  ministers,  and  their  induction  into  office, 
were  all  new  modelled,  and  the  establishment  was  the  offspring  of  the  le- 
gislative will.  Was  it  not  a  public  establishment  ?  Was  it  not  an  esta- 
blishment ior  public  purposes,  in  each  parish?  Were  not  the  funds  raised 
by  the  levies  upon  the  people  at  large  within  the  parish,  and  were  they  not, 
thus,  public  funds.''  These  questions  must  all,  I  apprehend,  be  answered 
in  the  affirmative  ;  and,  if  so,  then  was  the  whole  establishment  complete- 
ly under  legislative  control,  according  to  the  decisions  in  the  cases  of  the 
town  of  Pavvlet  rs.  Clarke,  in  9  Cranch,  and  the  Dartmouth  College  vs. 
Woodward,  4  Wheat.  518,  661. 

2.  Consider  the  question  in  relation  to  the  supposed  inroad  upon  vested 
rights.  I  have  already  shown  that  there  were  no  vested  rights  in  the  pro- . 
perty,  subsequent  to  the  act  of  1786,  since  after  that  act  there  was  no  de- 
finite individual,  or  set  of  individuals,  who  were  entitled  to  the  beneficial 
interest.  The  trustees  held  but  a  mere  naked  legal  title  for  the  use  of  the 
"religious  society  ;"  but  under  this  indefinite  phrase,  there  was  no  one  to 
take  by  reason  of  its  uncertainty.  The  failure  of  the  declaration  of  trust 
would  thus  leave  the  property  in  the  hands  of  the  trustees,  subject  to  a  re- 
sulting trust.  For  whom  ?  Unquestionably  for  the  public,  from  whom  the 
funds  had  moved.  And  how  should  that  public  have  disposed  of  them? 
Precisely,  I  think,  as  the  legislature  has  done,  by  appropriating  the  pro- 


APPENDIX.  15 

ceeds  of  sale  to  the  benefit  of  the  parish  from  whom  the  funds  had  been 
raised.  And  this  seems  in  accordance  with  the  doctrines' of  the  supremo 
court,  in  9  Cranch,  334,  335. 

Such  is  the  general  view  I  have  taken  of  the  constitutionality  of  the  acts 
for  the  abolition  of  the  corporation  of  the  vestries  and  ministers,  and  for 
the  sale  of  the  Glebe  lands.  I  shall  say  but  little  as  to  the  adjudications  on 
the  subject. 

It  is  well  known  that  the  venerable  Chancellor  Wythe  was  of  opinion 
tliat  the  laws  in  question  were  constitutional.  In  the  case  of  the  vestry  of 
Manchester  vs.  Overseers  of  the  Poor  of  Chesterfield,  he  is  rejiorted  to 
have  examined  into  the  rights  of  the  church — the  efl'oct  of  the  revolution 
upon  them  :  he  inquired  how  far  the  principles  of  civil  and  religious  free- 
dom, as  declared  by  our  bill  of  rights,  and  secured  by  our  constitution, 
were  inconsistent  with  the  pretensions  of  the  church,  and  their  enjoyment 
of  property,  which  was  originally  given  for  the  support  of  an  English  hie- 
rarchy;  lie  refuted  the  argument  which  attempted  to  show  any  injustice  in 
the  act  of  the  legislature  :  and  demonstrated  that,  by  restoring  it  to  be  dis- 
posed of  by  the  majority  of  the  parishioners,  it  effectuated  the  purposes  of 
justice,  without  contravening  the  rights  of  property,  or  violating  the  approved 
maxims  and  rules  of  law  ;  and,  finally,  decided  that  the  law  of  the  last  session, 
(1801,  C.  51,)  was  valid,  and  refused  to  award  an  injunction  to  stay  the  sale 
of  the  Glebe  of  the  Manchester  parish,  which  was  confessedly  vacant. 

This  decision,  it  is  understood,  was  affirmed  by  the  court  of  appeals. 

In  the  case  of  Claughton  vs.  McNaughton,  2  Mun.513,  Chancellor  Ty- 
ler granted  an  injunction  to  Mr.  McNaughton,  (the  incumbent  of  St.  Ste- 
phen's parish,  at  the  time  of  the  passage  of  the  acts  of  1798  and  1801,)  on 
the  ground,  that,  according  to  the  spirit  of  the  act,  no  Glebe  could  be  sold 
if  there  was  an  incumbent  in  possession,  who  had  been  in  possession  at 
the  time  those  laws  were  passed.  The  chancellor  decreed  that  the  defen- 
dants be  restrained  from  selling  so  long  as  the  plaintiff  should  continue 
the  incumbent  of  the  Glebe  ;  and  this  decision,  pregnant  with  the  affirma- 
tive that  they  might  sell  when  a  vacancy  happened,  was  affirmed  by  the 
court  of  appeals. 

On  the  other  hand,  the  case  of  Terret  vs.  Taylor  has  been  cited  from 
9  Cranch.  But  to  whatever  deference  the  decisions  of  the  supreme  court 
are  entitled,  as  the  opinions  of  wise  and  great  men,  they  are  of  no  bind- 
ing authority,  where  they  relate  to  a  subject  over  which  they  have  no  juris- 
diction. That  decision  was  pronounced  in  reference  to  a  Glebe  in  the 
District  of  Columbia,  which  district  having  been  ceded  anterior  to  the  act 
of  January,  1802,  the  decision  of  the  court,  on  the  unconstitutionality  of 
that  law,  was  extrajudicial,  as  it  had  no  effect  in  the  District  of  Columbia: 
and  if  they  went  out  of  their  way  to  decide  upon  the  constitutionality  of 
a  state  law,  which  could  have  no  influence  on  the  title  in  question,  this 
court  is  certainly  not  bound  by  its  decision. 

Nor  does  this  court  perceive,  or  admit,  that  that  court  can  ever  have 
rightful  jurisdiction  of  this  case.  It  turns,  in  my  apprehension,  on  the  act 
of  1786,  which  had  the  effect  of  annihilating  all  the  rights  of  the  church  ; 
and,  therefore,  the  case  does  not  arise  under  the  constitution  of  the  United 
States.  This  court  is  aware,  indeed,  that  a  pretension  has  been  sot  up  by 
the  supreme  court,  to  examine,  by  way  of  appeal,  the  decisions  of  the  court 
of  appeals,  in  cases  in  which  the  defeated  party  sets  up  ihc  pretence  of  de- 
manding the  protection  of  the  constitution  or  treaties  ;  and  that  that  court, 
when  thus  possessed  of  the  cause,  will  proceed  to  reverse  the  judgment  of 
the  court  of  appeals,  upon  points  totally  unconnected  with  such  pretence. 
7  Cranch,  Fairfax  vs.  Hunter.  But  the  court  of  appeals  are  understood  to 
have  repelled  this  pretension,  and  to  have  refused  to  register  the  reversal ; 


16  APPENDIX. 

an  opinion  perfectly  consonant,  as  it  appears  to  this  court,  to  the  princi- 
ples of  the  constitution. 

Having  thus  disposed  of  the  question  of  the  constitutionality  of  the  acts 
of  1798  and  ISQ'2,  this  opinion  might,  perhaps,  most  properly  terminate 
here.  I  trust,  however,  it  will  not  be  deemed  impertinent  to  remark,  that, 
in  my  conception,  those  acts  were  not  only  constitutional  and  just,  but  po- 
litic and  wise.  An  apprehension  of  the  dangers  of  ecclesiastical  establish- 
ments, did  not  spring  up  for  the  first  time  with  our  republican  institutions. 
The  history  of  ages  had  attested  the  proneness  of  such  establishments  to 
vast  accumulations  of  property,  and  the  statute  book  of  Great  Britain  is 
loaded  with  mortmain  acts,  which  were  rendered  necessary  by  the  rapacity 
of  the  clergy,  at  least  in  the  early  periods  of  the  church.  So  long  as  there 
has  been  a  church  establishment,  with  power  to  receive  and  to  accumulate 
property,  so  long  has  the  tendency  to  such  accumulation  been  manifested 
distinctly.  The  history  of  the  Papal  see,  and  of  the  religious  houses  un- 
der its  dominion,  is  but  a  history  of  the  cupidity  of  monks  and  devotees, 
veiled  under  the  sacred  garb  of  our  holy  religion.  The  vast  domains  of 
the  clergy,  acquired  in  the  lapse  of  centuries,  by  the  Catholic  establish- 
ment of  JFrance,  are  known  to  us  all.  There  seems  to  be  little  reason  to 
doubt  that  from  this  fatal  source,  among  others,  a  revolution  sprung,  which 
deluged  the  loveliest  country  of  Europe  in  blood  ;  and,  in  its  horrible  pro- 
gress, spread  desolation  over  adjoining  states,  and  shook  the  civilized  world 
to  its  very  centre.  But  it  may  be  said  "  that  this  was  anti-christ ;"  and  that 
it  is  not  fair  to  attribute  to  the  Protestant  religion,  the  errors  which  they 
had  been  forward  to  denounce  in  the  practices  of  Popery.  Look,  then, 
across  the  channel  to  Protestant  England,  and  there  we  shall  see,  notwith- 
standing every  legislative  precaution,  a  church  establishment  possessed  of 
overgrown  wealth,  less  devoted  to  the  cause  of  genuine  religion  than  to 
pamper  the  luxury  and  indolence  of  the  high  dignitaries  of  the  church. 
Or  come  nearer  home,  and  even  observe  the  great  accumulation  of  wealth 
which  already  prevails  in  the  Episcopal  church  of  New  York.  With  these 
reiterated  examples  before  their  eyes,  our  statesmen  have  been  wise  in  their 
caution.  The  evil  has  not  sprung  from  the  particular  creeds,  or  the  pecu- 
liarities of  confession  of  faith  ;  it  grows  out  of  the  very  nature  of  the  thing. 
The  church,  while  it  is  continually  acquiring  from  the  liberality  of  the  pious, 
or  the  fears  of  the  timid,  or  the  credulity  of  the  ignorant,  never  can  part 
with  any  thing  ;  and  thus,  like  those  sustaining  powers  in  mechanics,  which 
retain  whatever  they  once  have  gained,  it  advances  with  a  step  that  never 
tires,  and  that  never  retrogrades.  The  natural  cupidity  of  the  human  heart 
is  watched  by  the  devotee  himself,  with  the  less  jealousy  in  his  pursuit  af- 
ter acquisitions  for  the  church,  since  he  flatters  himself  that  it  is  purified 
from  the  dross  of  selfishness,  and  is  sanctified  by  the  holy  objects  of  his 
ambition.  Thus  it  is,  that,  however  humble  in  its  beginnings,  a  church  es- 
tablishment must  gather  strength  in  its  progress. 

Parva  nietii  prlmo  ;  mnx  sese  attoUit  in  auraa 
Ingrediturque  30I0,  el  caput  enter  niibila  coiidit. 

T,  therefore,  for  my  own  part,  most  heartily  concur  in  the  wisdom  and 
policy  of  the  legislative  provisions  we  have  been  considering,  and  in  the 
spirit  of  caution  which  has  inspired  them.  The  property  acquired,  indeed, 
by  the  church  in  Virginia,  was  inconsiderable  ;  but  we  have  read  the  his- 
tory of  centuries  past  to  little  purpose,  if  that  consideration  can  lull  our 
apprehensions,  or  put  our  just  jealousy  to  sleep.  The  same  influence 
which  enables  an  ecclesiastical  establishment  to  gain  from  the  state  its  first 
insignificant  privileges,  will  secure  to  them,  from  time  to  time,  new,  though 
apparently  inconsiderable  accessions,  until  at  last  our  worst  apprehensions 
may  be  realized.     When  has  a  state  yet  said  with  success  to  the  church — 


APPENDIX.  17 

"  Thus  far  shalt  thou  go  and  no  farther  ?"  May  we  not  rather  lay,  in  the 
language  of  Archimedes,  give  them  put  a  point  to  stand  upon,  and  they 
can  move  the  whole  earth. 

In  conclusion,  I  cannot  forbear  to  observe  that  the  consequences  of  a 
decree  against  the  validity  of  the  Glebe  laws,  furnish  a  suilicicnt  motive  for 
the  utmost  circumspection  in  the  examination  of  the  question.  Though 
we  may  accede  to  the  justice  of  the  motto — "  Fiat  juslitia  ruat  cailum,"  yet 
it  must  be  conceded,  on  the  other  Inind,  that  if  the  fall  of  the  heavens,  or 
the  scarcely  less  lamentable  evil  of  civil  dissention,  is  to  be  the  consequence, 
we  should  be  very  cautious  before  we  adopt  a  course  which  must  bring 
them  upon  ourselves.  In  this  aspect,  it  becomes  interesting  to  consider, 
that,  if  the  Glebe  laws  are  unconstitutional,  sales  heretofore  made  must  be 
set  aside.  Those  sales  having  been  made  without  warranty  indeed,  but 
upon  the  hiifh  of  the  legislative  acts,  to  whom  shall  the  purchaser  look  for 
indemnity?  Does  not  good  faith  require  a  legislative  provision  should  be 
made  for  levying  upon  the  parishes  the  purchase  money  which  has  been 
appropriated  for  their  relief?  And  if  such  levy  be  made  on  all  denomina- 
tions of  Christians,  with  a  view  to  the  reclamation  of  the  Glebes,  for  the 
benefit  of  only  one,  to  what  heart-burnings  and  dissentions  will  it  not  in- 
evitably lead  ?  For  my  own  part,  I  do  most  sincerely  deprecate  these  con- 
sequences, and  earnestly  hope  that  the  wisdom  of  our  highest  court  of  ju- 
dicature, in  Virginia,  may  not  find  itself  compelled  to  adopt  the  embarras- 
sing and  mischievous  opinion,  that  the  two  solemn  and  deliberate  acts  of 
the  legislature,  which  we  have  been  considering,  are  unconstitutional  and 
Void. 

I  have  not  thought  it  necessary  to  touch  upon  the  particular  character  of 
this  case.  The  frame  and  structure  of  the  bill  evidences  conscious  difficul- 
ty. The  vestry  and  church  wardens  are  first  named  as  plaintifl's.  If  they 
be  trustees  of  the  church,  and  entitled,  notwithstanding  the  law  directing 
the  sale  of  the  Glebes,  then  is  their  title  a  legal  title.  If  so,  this  is  not  the 
proper  tribunal  to  try  the  legal  title.  Let  them  go  to  a  court  of  law,  and  a 
jury  of  Loudoun.  If  they  have  no  legal  title,  neither  can  they  have  an 
equity,  since  they,  at  least,  are  not  cestui's  que  trust.  Nor  is  their  claim, 
as  individuals,  any  better.  They  claim  to  be  descendants  of  some,  and  as 
representing  others,  descendants  of  other  parishioners,  suing  upon  the 
ground  that  the  property  was  purchased  with  private  subscriptions.  In  this 
aspect  the  claim  is  wholly  unsustainable.  In  the  first  place,  private  sub- 
scriptions to  a  public  institution  are  considered  in  the  light  of  a  dedication 
to  the  public.  They  merge  in  it,  and  are  not  susceptible  of  reclamation. 
In  the  second  place,  in  this  aspect,  it  is  necessary  that  eac/i  claimant  should 
be  a  party  and  distinctly  trace  his  title,  by  inheritance,  from  the  first  sub- 
scriber down  to  himself,  if,  indeed,  after  such  a  length  of  time,  a  resulting 
trust  could  be  raised  in  favor  of  those  from  whom  the  purchase  money 
moved. 

The  very  statement  of  the  case  affords  its  refutation,  and  the  very  frame 
of  the  bill  carries  with  it  decisive  evidence,  that  the  draftsman  found  him- 
self environed  with  difficulties  which  no  human  ability  could  overcome. 
Dismissed  with  costs. 

A  copy.  DANIEL  LER 


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